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

FOR OFFICIAL USE ONLY

ex-QMSA, USN
Docket No. ND06-00480

Applicant’s Request

The application for discharge review was received on 20060214.  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 designated Disabled American Veterans as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20061214.  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 characterization of the discharge shall not change.  The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to a pattern of misconduct.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues:

No issues were submitted by the Applicant.

Documentation

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

Applicant’s DD Form 214  (Member 4)
Character Reference ltr from B_ G_ Sr, dtd June 20, 2005  
Character Reference ltr from B_ G_ III, undtd
Grady High School Community Service Log, dtd February 20, 2000

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20011020 - 20020811	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20020812		Date of Discharge:  20050418

Length of Service (years, months, days):

	Active:    02  08  07
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  18

Years Contracted:  4 

Education Level:  12				AFQT:  55

Highest Rate:  QMSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0 (4)	Behavior:  2.0 (4)		OTA:  2.83 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal, Navy Unit Commendation Medal, Global War On Terrorism Expeditionary Medal, Sea Service Deployment Ribbon (2), Navy Marine Corps Overseas Service Ribbon

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

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

Chronological Listing of Significant Service Events: 

030321:	NJP for violation of UCMJ, Article 91(3 specs):  Willful disobedience of a petty officer and disrespect toward a petty officer. 
Violation of UCMJ, Article 92: Failure to obey other lawful order.
Violation of UCMJ, Article 117: Provoking speeches.
	Award:  Forfeiture of $670.00 pay per month for 2 months (suspended for 1 month), restriction and extra duty for 30 days, reduction to E-2 (suspended for 1 month).  No indication of appeal in the record.

030321:	Retention Warning:  Advised of deficiency (VUCMJ, Article 91 – Willful disobedience of petty officer and Disrespect toward petty officer (3 specs), Article 92 – Failure to obey other lawful order and Article 117 – (provoking speech), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

031010:	NJP for violation of UCMJ, Article 90: Willfully disobeying superior commissioned officer.
Violation of UCMJ, Article 92: Failure to obey a lawful general order.
	Award:  Forfeiture of $670.00 pay per month for 2 months (1 month suspended times 6 months suspended), restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

031108:	NJP for violation of UCMJ, Article 86 (3 Specs): Unauthorized absence
	Award:  3 days confinement on bread and water.  No indication of appeal in the record.

040913:	NJP for violation of UCMJ, Article 86: Unauthorized absence.
Violation of UCMJ, Article 87: Missing movement. 
Award:  Forfeiture of $777.00 pay per month for 2 months (1 month suspended times 6 months), restriction and extra duty for 30 days.  No indication of appeal in the record.

050310:	NJP for violation of UCMJ, Article 86: Unauthorized absence.
Violation of UCMJ, Article 113: Misbehavior of a sentinel or lookout.
	Award:  Forfeiture of $729.00 pay per month for 2 months, restriction and extra duty for 30 days, reduction to E-2.  No indication of appeal in the record.

050312:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.

050312:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

050324:	Commanding Officer, USS KITTY HAWK (CV 63), recommended that the Applicant be discharged under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.  Commanding Officer’s comments:  “As addressed in paragraph (d) above, QMSA G_, (Applicant) exceeds the requirements for administrative processing for Misconduct – Pattern of misconduct and Misconduct – Commission of a serious offense.  QMSA G_ has made poor choices since checking aboard KITTY HAWK.  He has shown a consistent determination to disregard the directions of those appointed over him, and to conduct himself as he deems fit.  He has proven to be incapable of conforming to the most simple and basic military duties.  His chain of command has given him ample opportunities to conform to Naval standards, but he has chosen to fail.  His military bearing is substandard and he has made no attempt to meet military standards.  He does not have the potential for future honorable service.  Therefore, I recommend that he be discharged under Other than Honorable Conditions, with a reenlistment code of RE-4.

050327:	Commander, Carrier Strike Group FIVE, directed that the Applicant be discharged under other than honorable conditions by reason of misconduct due to pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050418 by reason of misconduct due to a pattern of misconduct (A and B) with a service characterization of under other than 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).  The Board presumed regularity in the conduct of governmental affairs (E).

The Applicant requests upgrade of his discharge to honorable.  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 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 five nonjudicial punishment proceedings for violations of UCMJ articles 86 (authorized absence), 87 (missing movement), 90, (willful disobedience of a superior commissioned officer), 91 (willful disobedience of a petty officer and disrespect towards a petty officer), 92 (disobey a lawful general order), and 113 (misbehavior of a sentinel).  Violations of articles 87 (missing movement), 90, (willful disobedience of a superior commissioned officer), 91 (willful disobedience of a petty officer and disrespect towards a petty officer), 92 (disobey a lawful general order), and 113 (misbehavior of a sentinel) are considered serious offenses for which a punitive discharge is authorized at courts 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 states that he would like veteran’s benefits.  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge. 

The Applicant stated that he would like to return to the military.   The following is provided for the edification of the Applicant.  The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces.  Reenlistment policy of the Naval service is promulgated by the Commander, Navy Recruiting Command, 5722 Integrity Drive, Bldg 784, Millington, TN 38054.  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

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.  The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this 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), 90, (willful disobedience of a superior commissioned officer), 91 (willful disobedience of a petty officer and disrespect towards a petty officer), 92 (disobey a lawful general order), and 113 (misbehavior of a sentinel) .

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.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.  

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 Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive 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 Directive 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