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

 ex-ABEAA, USN
Docket No. ND01-01189

Applicant’s Request

The application for discharge review, received 010919, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.  Subsequent to the application, the applicant obtained representation by the Disabled American Veterans.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020604.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  The only Issue I have is, I know the policy and I disobeyed them, and for that, I'm truly sorry.  I spent 8 great years in the Navy and had full intentions of making it my life.  I was a good sailor, and knew and did my job very well.  This is a plea to the board to reconsider my discharge and upgrade it to an Honorable Discharge.  I would like consideration on Re-entry into the Navy.  All I ask is to look at my past in the Navy and the job I did, and base your discussion on that, I now what I did was wrong and went against Navy policy, but while on 3 different carriers I did what ever it took to get the job done, and I did put the navy first, and would like to have another chance if it be your will.

2. Dear Chairpersons:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to support the contentions as set forth by the applicant, in his request that he be given the opportunity to re-enlist to enable him to receive a Honorable Discharge and to retire from active duty.

The (FSM) joined the United States Naval Service on March 17 1992 until May 26 2000 where he served and was cited with several Minor-judicial punishments for the better part of his military career a total of over eight (8) years.  During his military tenure he performed and received several early promotions of acclaim and was also rated as an excellent sailor.  The (FSM) was also trained and cited as a knowledge expert in the field of Precision Measuring Equipment on broad ship by his superiors.

The (FSM) seeks now to re-enlist in a effort to serve his country again in hope of being granted a Honorable Discharge from the Navy, which he states is a matter of Honor and Respect.  We respectfully request that the (FSM) be given the complete and duly consideration by the board.  We also respectfully request that the board consider each reasonable explanation submitted by the (FSM) who wishes now to correct his youthful and immature behavior he demonstrated in prior service .

We ask for the Boards careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the applicant.  Respectfully

Documentation

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

Copy of DD Form 214 (3 copies)
One hundred and forty-five pages from applicant's service record

PART II - SUMMARY OF SERVICE

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

	Active:  USN 			920317 - 960314	HON
	Inactive: USNR (DEP)	911011 - 920316	COG

Period of Service Under Review:

Date of Enlistment:  960315		Date of Discharge:  000526

Length of Service (years, months, days):

	Active:    04  02  11
	Inactive:  None

Age at Entry:  22			Years Contracted:  6

Education Level:  12			AFQT:  50

Highest Rate:  ABE2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.30 (7)	Behavior:  3.10 (7)		OTA:  3.31

Military Decorations:  None

Unit/Campaign/Service Awards:  MUC, GCM (2), AFEM, NDSM, SASM with Bronze Star, AFSM, SSDR (3)

Days of Unauthorized Absence:  None

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

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

Chronological Listing of Significant Service Events:

990812:	NJP for violation of UCMJ, Article 121: Larceny approximately Sep-Dec98, to wit: wrongfully took, obtained or withheld 15 CD's from AE3, violation of UCMJ, Article 91: Insubordinate conduct toward a warrant officer from June to July 1999, to wit: not start a relationship with Airman, willfully disobey the same, violation of UCMJ, Article 92 (2 specs): (1) Failure to obey order or regulation in that ABE2, having knowledge of a lawful order issued by OPNAVINSTR 5370.2B, to wit: paragraph 5b, and 5c, dated 27May99, an order which was his duty to obey, did on board Naval Air Engineering Station, on or about June 1999 - July 1999, fail to obey the same by wrongfully having a romantic relationship with ABEAR, (2) Failure to obey other lawful order in that ABE2, having knowledge of a lawful order issued by ABE1 not to have a personal relationship with ABEAR, an order which was his duty to obey, did in June and July 1999, onboard Naval Air Engineering Station, fail to obey the same by wrongfully having a romantic relationship with ABEAR, violation of UCMJ, Article 86: Going from appointed place of duty, in that PO left his appointed place of duty on 1645, 11Aug99 and never returned to fulfill his watch until 0800, 12Aug99.
	Award:  Forfeiture of $742 per month for 2 months, restriction for 45 days, reduction to ABE3.  No indication of appeal in the record.

000203:	NJP for violation of UCMJ, Article 90:  Willfully disobeyed a lawful order on 23Jan00, violation of UCMJ, Article 92 (2 specs): (1) Violate a lawful general regulation, to wit: OPNAVINST 5370.2b dated 27May99, by wrongfully engaging in an unduly familiar relationship not respecting the difference in grade with a direct subordinate of the PO, to wit: maintaining an inappropriate relationship with ABMAN, (2) Violate a lawful general regulation, to wit:NAES NJ CBQ Welcome Aboard Pamphlet and NAWCADLKE Instruction 11101.3 by visiting between the hours of 0800-2000 in Bldg 481, Room 411, a room occupied by E-3 and below and not visiting in lounges only, an agreement/acknowledgement signed by PO on 21Jun99, violation of UCMJ, Article 134: violate New Jersey Statute 2C:33-17, as assimilated into Federal law by the provisions of the Federal Assimilated Crimes Act, 18 U.S.C. & 13, by wrongfully serving alcoholic beverages, to wit: beer, to individuals he knew to be underage, to wit: ABMAN and ABMAR.
	Award:  Forfeiture of $563 per month for 2 months, restriction for 60 days, reduction to ABEAN.  No indication of appeal in the record.

000216:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

000216:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

000217:	NJP for violation of UCMJ, Article 91:Willfully disobey lawful order on 15Feb00, to wit: not to enter any other barracks rooms, violation of UCMJ, Article 92: Violate a lawful general regulation, to wit: NAES NJ CBQ Welcome Aboard Pamphlet and NAWCADLKE Instruction 11101.3 by visiting between the hours of 0800-2000 in Bldg 481, a room occupied by E-3 and below and not visiting in lounges only, an agreement//acknowledgement signed by Airman on 21Jun99.
	Award:  Restriction for 60 days, reduction to ABEAA.  No indication of appeal in the record.

000516:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to a pattern of misconduct, that the misconduct warranted separation, and recommended discharge general (under honorable conditions).

000518:	Commanding officer directed discharge general (under honorable conditions) by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 000526 general (under honorable conditions) for misconduct due to a pattern of misconduct (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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).

Issue 1.  A characterization of service of under honorable conditions (general) 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 award of nonjudicial punishment (NJP) for offenses triable by court-martial on three occasions.  The applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful disobedience of the orders and directives which regulate good order and discipline in naval service, and falls short of that required for an honorable characterization of service.  An upgrade to honorable would be inappropriate. Relief denied.

Issue 2.  Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  Relief is therefore denied.

The applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  Additionally, 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 the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct.  The applicant did not provide sufficient documentation to warrant an upgrade to his discharge.  He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 1997 until Present, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 “afls10.jag.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:

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