DEPARTMENT OF THE NAVY
 NAVAL DISCHARGE REVIEW BOARD (NDRB)
                     DISCHARGE REVIEW
                   DECISIONAL DOCUMENT

FOR OFFICIAL USE ONLY

ex-BUCA, USN
Docket No. ND06-00478

Applicant’s Request

The application for discharge review was received on 20060216.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20061130.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain General (Under Honorable Conditions) by reason of misconduct due to a pattern of misconduct.

PART I – DECISIONAL ISSUES 

Issues

EQUITY:  Family Issues.

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s issues, undated
VA Form 21-4138, Statement from J_ L_, Command Master Chief, 1st FSSG, dtd  November 02, 2005 
VA Form 21-4138, Statement from E_ B_, Applicant’s wife, dtd November 28, 2005  
Applicant’s DD Form 214  (Member 4)
Ltr from R_ S_, Assistant Mgr, Record Support Section, Bureau of Criminal Identification and Information, dtd June 5 2006

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Inactive:  USNR (DEP)	19990925 - 20000718	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20000719		Date of Discharge:  20050211

Length of Service (years, months, days):

	Active:    04  06  23  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  26

Years Contracted:  4 (12-month extension)

Education Level:  GED			AFQT:  32

Highest Rate:  BUCN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.8 (5)		Behavior:  3.0 (5) 			OTA:  2.83 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Good Conduct Medal For Period Ending 041120, National Defense Service Medal, Armed Forces Expeditionary Medal, Presidential Unit Citation (NAVY), Sea Service Deployment Ribbon (3), Korean Defense Service Medal, Navy Rifle Medal (Expert), Navy Pistol Ribbon (Marksman)

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority:  MILPERSMAN, Article 1910-140 (formerly 3630600).

Chronological Listing of Significant Service Events: 

011121:	NJP for violation of UCMJ, Article 92:  Dereliction in the performance of duties in that he negligently failed to maintain the number of 5.56MM rounds issued to him at the beginning of his watch on 011002.
Award:  Restriction and extra duty for 45 days and forfeiture of $500.00 pay per month for 2 months (1 month suspended for 6 months).  No indication of appeal in the record.

011121:	Retention Warning:  Advised of deficiency (Commanding Officer’s nonjudicial punishment on 011121 for violation of the UCJM, Article 92, Dereliction in the performance of duties on 011002.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

041216:	NJP for violation of UCMJ, Article 86 (3 specs):  Unauthorized Absence.
Specification 1:  In that Builder Constructionman E_ B_ (Applicant), U.S.  Naval Mobile Construction Battalion FIVE, on active duty, near Naval Base Ventura County, Port Hueneme, California, on or about 041102, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Command Post Exercise watch at 1400.
Specification 2: In that Builder Constructionman E_ B_, U.S.  Naval Mobile Construction Battalion FIVE, on active duty, near Naval Base Ventura County, Port Hueneme, California, on or about 041108, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: 1430 Muster.
Specification 3:  In that Builder Constructionman E_ B_, U.S.  Naval Mobile Construction Battalion FIVE, on active duty, near Naval Base Ventura County, Port Hueneme, California, on or about 041116, without authority, fail to go at the time prescribed to his appointed place of duty, to wit:  1530 Muster.
Violation of UCMJ, Article 87: Missing Movement.
Specification:  In that Builder Constructionman E_ B_, U.S. Navy, U.S. Naval Mobil Construction Battalion FIVE, on active duty, did, at or near Naval base Ventura County Port Hueneme, California, on or about 041127, through design miss the movement of U. S.  Naval Mobile Construction Battalion FIVE with which he was required the course of duty to move.
Violation of UCMJ, Article 91 (2 Specs):  Disobeying a noncommissioned and petty officer.
Specification 1:  In that Builder Constructionman E_ B_, U.S. Navy, U.S.  Naval Mobile Constructionman Battalion FIVE, on active duty, having received a lawful order from Builder Constructionman T_ W. N_, U.S. Navy, a senior chief petty officer, then known by the said BUCN B_ to be a senior chief petty officer to have his FEX gear in his barracks room and not in Los Angeles, an order which it was his duty to obey, did at or near Naval Port Hueneme, California, on or about 041127, willfully disobey the same.
Specification 2:  In that Builder Constructionman E_ B_ (Applicant), U.S.  Naval Mobile Construction Battalion FIVE, on active duty, having received a lawful order from Builder Constructionman First Class J_ D. B_, U. S. Navy, a first class petty officer, then known by the said BUCN B_ to be a first class petty officer, to report Saturday morning in uniform with his gear and let the medical department determine his status, an order which it was his duty to obey, did at or near Naval Base Ventura County, Port Hueneme, California, on or about 041127, willfully disobey the same.
	Award:  Forfeiture of $669.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

041216:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct due to pattern of misconduct and misconduct commission of a serious offense.

041216:	Applicant advised of rights and having consulted with counsel, elected to obtain copies of the documents used to support the basis for the separation.

050202:	Commanding Officer, U.S. Naval Mobil Construction Battalion FIVE, directed the Applicant’s general (under honorable conditions) discharge by reason of misconduct due to a pattern of misconduct.

050217:	Commanding Officer, U. S. Naval Mobil Construction Battalion Five, informed Commander, Navy Personnel Command, of Applicant’s discharge.  Commanding Officer’s comments:  “On 041216, BUCA B_ (Applicant) went to NJP for the second time, including 3 serious offenses.  He violated his Page 13 issued on 011121.  BUCA B_ had numerous counseling sessions between his 2 NJPs with no improvement.”

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050211 by reason of misconduct due to a pattern of misconduct (A and B) with a service characterization of general (under honorable conditions).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  

When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  An under other than honorable conditions or general discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.  The Applicant’s service was marred by a retention warning and two nonjudicial punishment proceedings for violations of Articles 86, 87, 91 and 92 of the UCMJ.  Violations of Article 87, 91 and 92 are considered serious offenses for which a punitive discharge is authorized if adjudged as part of the sentence upon conviction at a special or general court-martial.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant contends that his problems in the Navy can be attributed to his family obligations, in particular the health of his son.  While the Applicant may feel that his personal situation was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  Neither the evidence of record nor the documents submitted by the Applicant show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Relief denied.

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided sufficient post-service documentation for the Board to consider.  Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 2002 until 25 April 2005, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

B.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 87, missing movement by design, Article 91, insubordinate conduct or Article 92, failure to obey order/regulation.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

PART IV - INFORMATION FOR THE APPLICANT

If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction before submitting such a complaint.  The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness.  You may view DoD Instruction 1332.28 and other Decisional Documents by going online at “http://Boards.law.af.mil”.

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023