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

FOR OFFICIAL USE ONLY

ex-SA, USN
Docket No. ND06-00592

Applicant’s Request

The application for discharge review was received on 20060330.  The Applicant requests that 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 20070110.  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 Under Other Than Honorable Conditions by reason of misconduct due to commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“Well if you look in my service record I have very good work habbits.  Never got in trouble for first year of enlistment.  Then I got in trouble for punching a second class on my boat he came on the boat drunk and was messing with my work space helmets witch I am in charge of.  I got captins mass and so did he.  What got me kick out the navy my BM3 S_ took me out to the bar to hang out someone hit his nice car and he got out and shot at them.   He told my Captin that no one knew he was going to do that.  But after that my comand wanted me gone so they had to build paperwork on me.  So if my shirt was untucked I got in trouble it I breathed wrong I got in trouble.  So I told my captin I dont think I belong no more.  I even asked to go to another comand of just strike out my division.  They said no and I came late the next day.  Then a week later I got kicked out.”

Documentation

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

Applicant’s DD Form 214 (Member 1)
Letter from Applicant, dtd July 10, 2006
Evaluation Report and Counseling Record for July 16, 2004 to June 22, 2005 (2)
Three pages from Applicant’s medical record
Letter from Commanding Officer, USS FORD (FFG 54), dtd June 22, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20021219 - 20030415	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20030416		Date of Discharge:  20050622

Length of Service (years, months, days):

	Active:    02  02  07  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  3 days
	Confinement:		  None

Age at Entry:  20

Years Contracted:  4

Education Level:  10				AFQT:  40

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):*

Performance:  3.0 (1)		Behavior:  1.0 (1)		OTA:  2.33

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal; Sea Service Deployment Ribbon; Global War on Terrorism Service Medal

*Extracted from supporting documents submitted by Applicant

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT (SERIOUS OFFENSE), authority:  MILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events: 

040621:	NJP for violation of UCMJ, Article 128, assault consumated by a battery on 040620.
	Award:  Restriction for 30 days.  No indication of appeal in the record.

040621:	Retention Warning:  Advised of deficiency (Assault consummated by battery.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

041026:	NJP for violation of UCMJ, Article 86, Unauthorized absence on 041024.
	Award:  Forfeiture of $734.00 per month for 1 month, restriction for 30 days (suspended for 6 mos).  No indication of appeal in the record.

050518:	Applicant to unauthorized absence on 050518.  [Extracted from DD Form 214, Block 29.]

050520:	Applicant from unauthorized absence on 050520 (3 days).  [Extracted from DD Form 214, Block 29.]

050520:	NJP for violation of UCMJ, Article 86, Unauthorized absence.
Violation of UCMJ, Article 90: Willfully disobeying superior commissioned officer.
	Award:  Restriction for 60 days, reduction to E-2.  No indication of appeal in the record.

050523:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of pattern of misconduct and commission of a serious offense.

050523:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

050531:	Commanding Officer, USS FORD (FFG 54), recommended discharge under other than honorable conditions by reason of pattern of misconduct and commission of a serious offense.  Commanding Officer’s comments:  “(1) Seaman H_(Applicant) is unsuitable for service in the United States Navy.  Despite numerous warnings, he continues to demonstrate disregard for good order and discipline.  His performance on the job has been until recently, exemplary, however his personal behavior created a situation that cannot be tolerated.  In spite of strong support from his entire chain of command, SN H_ has proven unable to correct the shortcomings in his behavior.  Over the course of the past year, he has been in an altercation with his shipmates; received Non-Judicial Punishment for three separate instances of Unauthorized Absence and chose to disobey an order from me.  He is currently awaiting trial in Snohomish County for involvement in a drive-by shooting.  (2) Due to the nature of these offenses, I request Seaman H_ to be separated and the characterization of his service is Other Than Honorable (OTH).”

050615:	COMCARSTRKGRU, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050622 by reason of misconduct due to commission of a serious offense (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). 

In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.  Specifically, the Applicant alleged that his command was unfairly biased against him in pursuing his administrative discharge.  There is no evidence of impropriety or inequity in the Applicant’s discharge.  The Applicant’s misconduct is clearly documented.  Therefore, relief is denied. 

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 warnings and 3 nonjudicial punishment proceedings for violations of Articles 86 (unauthorized absence), 90 (Willfully disobeying a superior commissioned officer) and 128 (Assault consummated by battery) of the UCMJ.  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 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), Change 11, effective 
26 April 2005 until Present, Article 1910-142, SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

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 90 (Willfully disobeying superior commissioned officer) and 128 (Assault consummated by battery).

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 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