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Docket No. ND02-01286

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

 ex-FN, USN
Docket No. ND02-01286

Applicant’s Request

The application for discharge review, received 020910, 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 list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030722.  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/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  I want to change my discharge to a general/under honorable conditions so I can go back into the service as soon as I qualify.  Hopefully this can workout for all of us in the most positive ways.  Sincerely

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	991217 - 000119	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  000120		Date of Discharge:  011026

Length of Service (years, months, days):

	Active:    01  09  07
	Inactive:  None

Age at Entry:  23			Years Contracted:  4

Education Level:  10 GED		AFQT:  58

Highest Rate:  FN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.00 (1)	Behavior:  1.00 (1)		OTA:  1.50

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR

Days of Unauthorized Absence:  23

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

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

Chronological Listing of Significant Service Events:

001027:	NJP for violation of UCMJ, Article 86 (2 specs): (1) Unauthorized absence from 0715, 000914 to 1415, 001005 (22 days/surrendered), (2) Unauthorized absence on 001012.
	Award: Forfeiture of $503 per month for 2 months, restriction for 60 days. Forfeiture suspended for 6 months.  No indication of appeal in the record.

001028:	Retention Warning:  Advised of deficiency (Unauthorized absence from 000914 until 001005), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

001105:	Vacate forfeiture awarded at CO's NJP dated 001027 is partially vacated, only $503.00 for 1 month is vacated, the remainder remains suspended.

001122:	NJP for violation of UCMJ, Article 86 (2 specs): Unauthorized absence.
	Award: Correctional custody for 30 days.  No indication of appeal in the record.

001128:	Vacate the remaining month of suspended forfeiture of $503.00 for 1 month awarded at CO's NJP dated 001027 due to continued misconduct.

010127:	NJP for violation of UCMJ, Article 86: Unauthorized absence on 010108.
	Award: Forfeiture of $521 per month for 2 months, restriction for 60 days.  Forfeiture suspended for 6 months.  No indication of appeal in the record.

010401:	Vacate forfeiture of $521.00 for 2 months awarded at CO's NJP dated 010127 due to continued misconduct.

010401:	NJP for violation of UCMJ, Article 86 (6 specs): (1) Unauthorized absence from 0715, 010302 until 1511, 010303 (1 day), (2) Failed to go at the time prescribed to appointed place of duty, restricted personnel muster, on 1130, 010305, (3) Failed to go at the time prescribed to appointed place of duty, restricted personnel muster on 2130, 010307, (4) Failed to go at the time prescribed to appointed place of duty, restricted personnel muster on 0730, 010318, (5) Failed to go at the time prescribed to appointed place of duty, restricted personnel muster on 0630, 010319, (6) Failed to go at the time prescribed to appointed place of duty, restricted personnel muster on 0630, 010320.
	Award: Forfeiture of $521 per month for 2 months, restriction and extra duty for 45 days.  Forfeiture suspended for 6 months.   No indication of appeal in the record.

010423:	Vacate forfeiture of $521.00 for 2 months awarded at CO's NJP dated 010401 due to continued misconduct.

010423:	NJP for violation of UCMJ, Article 86 (9 specs): (1) Failed to go at the time prescribed to appointed place of duty, restricted personnel muster on 010403, (2) Failed to go at the time prescribed to appointed place of duty, restricted personnel muster on 010406, (3) Failed to go at the time prescribed to appointed place of duty, restricted personnel muster on 010411, (4) Failed to go at the time prescribed to appointed place of duty, restricted personnel muster on 010413, (5) Failed to go at the time prescribed to appointed place of duty, restricted personnel muster on 010414, (6) Failed to go at the time prescribed to appointed place of duty, restricted personnel muster on 010415, (7) Failed to go at the time prescribed to appointed place of duty, restricted personnel muster on 010421, (8) Failed to go at the time prescribed to appointed place of duty, restricted personnel muster on 010422, (9) Failed to go at the time prescribed to appointed place of duty. Violation of UCMJ, Article 90: Willfully disobeyed superior commissioned officer on 010411.
	Award: Forfeiture of $521 per month for 2 months, confinement on bread and water for 3 days.  No indication of appeal in the record.

010727:	NJP for violation of UCMJ, Article 86 (2 specs): Go from appointed place of duty, without authority on 010707 and 010721.
	Award: Forfeiture of $521 per month for 2 months, restriction and extra duty for 45 days.  Forfeiture suspended for 6 months.  Restriction and extra duty for 30 days suspended for 6 months.   No indication of appeal in the record.

010907:	NJP for violation of UCMJ, Article 86 (3 specs): (1) Failed to go at the time prescribed to appointed place of duty, on 010901, (2) Failed to go at the time prescribed to appointed place of duty on 010904, (3) Go from appointed place of duty on 010902, violation of UCMJ, Article 91: Willfully disobeyed a lawful order given by a First Class Petty Officer.
	Award: Forfeiture of $521 per month for 2 months, confinement on bread and water for 3 days.  No indication of appeal in the record.

011002:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.

011002:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

011017:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct.

011018:	Commander, Naval Surface Group, Pacific Northwest directed the Applicant's discharge under other than 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 011026 under other than 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 other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor.  The Applicant’s service was marred by award of non-judicial punishment (NJP) on  seven occasions.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service.  An upgrade would be inappropriate.  Relief denied.

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 inequity must have existed during the period of enlistment in question.  No such error or inequity is evident 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.  Relief not warranted.

The Applicant 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.  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 18, effective
12 Dec 1997 until 21 Aug 2002, 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 “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.
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