Author: CAP
Last saved by: Department of the Navy
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Docket No. ND02-01193

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

 ex-FR, USN
Docket No. ND02-01193

Applicant’s Request

The application for discharge review, received 020821, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The Applicant requested 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 030515.  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: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  Respectfully request to change my reentry code to serve again in the United States military (Navy).  My life has changed since September 11, 01 Terrorist Attacks.  I see things from a mature point of view.  My respects to all of those who lost their love ones, and those firefighters, police men and military who lost their lives during this tragedy.  I am on the right path now, please allow me the opportunity to show that I have the skills to serve my country once again.  God Bless our Marines in Afghanistan and all Sailors overseas.  I will not failed this time if given me the opportunity.  I have attached to this application my Good Conduct Letter from Puerto Rico Police Department and an additional page.  Allow me a 2^nd opportunity to go on active duty service.  I submitted a copy of my D.D. 214.  Very Respectfully, (Signed by Applicant)

Documentation

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

Applicant's letter to the Board, undated 
Copy of DD Form 214
Puerto Rico Police Record, dated 29 July 2002

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	991130 - 991222	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  991223		Date of Discharge:  001201

Length of Service (years, months, days):

	Active:    00  11  09  	(Does not exclude lost time.)
	Inactive:  None

Age at Entry:  21			Years Contracted:  4 

Education Level:  12½			AFQT:  38

Highest Rate:  FA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF*	Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  44

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

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

Chronological Listing of Significant Service Events:

991223	Applicant reported to Recruit Training, Great Lakes.

000511	Applicant reported to USS ANCHORAGE (LSD-36) for duty.  Home port San Diego, CA.

000613	Medical record entry.  Applicant found to be alcohol dependent.

000711:	Applicant to unauthorized absence from USS ANCHORAGE (LSD-36).

000721:	Applicant declared a deserter - DD553 issued.

000821:	Applicant surrendered to military jurisdiction (Transient Personnel Unit (TPU), Naval Station, San Diego, CA.

000825:	Applicant assigned to temporary duty at TPU for administrative separation processing.

000831:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

000831:	Commanding Officer, USS ANCHORAGE (LSD-36) recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  Commanding Officer’s comments (verbatim):  [FA L_ (Applicant) went UA while pending NJP, he put himself into a position where he knew he would be UA and miss ship's movement prior to deployment.  FA L_ (Applicant) was classified a deserter on August 10, after 30 days UA.  FA L_ (Applicant)'s offenses warrant separation from the Navy with an Other Than Honorable specification.]

001020:	TPU, NAVSTA, San Diego, CA, held NJP for violation of UCMJ, Article 86 (3 Specs):  Specification (1) Unauthorized absence from unit, USS ANCHORAGE from 11 JUL 00 to 21 AUG 00.  Specification (2) Unauthorized absence from unit, TPU NAVSTA, San Diego, from 0700 to 1500, 1 OCT 00.  Specification (3) Unauthorized absence from unit, TPU, NAVSTA, San Diego, from 16 OCT 00 to 18 OCT 00.
Violation of UCMJ, Article 134 (2 Specs):  Specification (1) On 16 SEP 00 as a result of wrongful previous overindulgence in intoxicating liquor was incapacitated for the performance of duty.  Specification (2) On 18 OCT 00 as a result of wrongful previous overindulgence in intoxicating liquor was incapacitated for the performance of duty.
	Award:  Forfeiture of $502 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

001201:	Per the Applicant's DD Form 214, Applicant was discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

Note:  Incomplete discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 001201 under other than honorable conditions for misconduct due to commission of a serious offense (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:  The NDRB has no authority to make recommendations to permit reenlistment, reentry, or reinstatement into the naval service or any other branch of the Armed Forces, as requested by the Applicant.  Neither a less than 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.  The “RE-4” code means the former service member is not eligible for reenlistment without prior approval of the Chief of Naval Personnel.  Relief denied.

The Applicant’s summary of service is marred by award of non-judicial punishment (NJP) and counseling entries for his misconduct.  The record is devoid of evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  After a complete review of the record, including the evidence submitted by the Applicant, the Board determined that the Applicant’s discharge was proper and equitable.  An upgrade to general (under honorable conditions) would be inappropriate.  Relief denied.

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, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.  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.  The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  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 30, dated 7 Nov 00, effective 30 Aug 00 until 24 Jan 01, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

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 "afls14.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

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX:  A6730/A9241/A9445/A9217/A9223/A9221