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Docket No. ND03-00446

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

ex-SR, USN
Docket No. ND03-00446

Applicant’s Request

The application for discharge review was received on 20030124.  The Applicant requests the 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 list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20031215.  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/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “To the board please look over my record and please find it to give me another chance to serve the country that I love.”

Documentation

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

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	981117 - 990929	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  990930		Date of Discharge:  010323

Length of Service (years, months, days):

	Active:    01  05  24
	Inactive:  None

Age at Entry:  23			Years Contracted:  4

Education Level:  12			AFQT:  41

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (1)	Behavior:  3.00 (1)		OTA:  2.83

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

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:

000424:	Retention Warning:  Advised of deficiency (Conduct of a nature to bring discredit upon the Armed Forces, failure to pay just debts), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

000828:	Investigation was conducted to look into charges of check kiting, fraud, making false statements and other misconduct as laid against Applicant.  Recommended Applicant be awarded NJP and receive an administrative separation.

000829:	Applicant detained by Base Police at 1100, 000829 and was on unauthorized absence 1100-1640, 000829.

000831:	Civil Conviction:  [General District Court, Traffic Division, Virginia Beach, VA] for violation of speeding (44/30).
Sentence: Fine $25.00 and court cost.

000907:	Civil Conviction: [General District Court, Traffic Division, Virginia Beach, VA] for amended violation of speeding 10 –19 over.
Sentence: Fine $57.00 and court cost.

001106:	Applicant’s defense counsel requested a mental examination be ordered for Applicant.

001113:	Charges drawn: Charge I: Violation of UCMJ, Article 123 (2 specs), Charge II: Violation of UCMJ, Article 123a (5 specs), Charge III: Violation of UCMJ, 134, Additional Charge, violation of UCMJ, Article 121.

001203:	Conclusions of inquiry into mental capacity in case of Applicant.  The Board made the following separate and distinct findings:
a. At the time of the alleged criminal conduct the accused did have a severe mental disease or defect.
b. The clinical psychiatric diagnoses, using diagnostic criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition Text Revision, (DSM IV-TR) are: (1) Learning disorder, (2) Adjustment disorder with depressed mood, (3) Alcohol abuse.
	c. SA H_ (Applicant) at the time of the alleged criminal conduct, was not able to appreciate the nature and quality or wrongfulness of his conduct with regard to the alleged violations of UCMJ, Art. 123A (five specifications) and violation of UCMJ, Art. 134 (charges 3 & 4).  He was able to appreciate the nature and quality or wrongfulness of his conduct with regard to his alleged violation of UCMJ, Art 121 and UCMJ, Art. 123 (charges 1 and 2).
	d. SA H_ (Applicant) has the mental capacity to understand the nature of the proceedings and to conduct or cooperate intelligently in his defense.

010119:	Charges and specifications thereunder, preferred 001113 and hereby withdrawn and dismissed without prejudice to the government.

010119:	NJP for violation of UCMJ, Article 123 (2 specs): Forgery on 000828 and 000829.
	Award: Forfeiture ½ months pay for 2 months, extra duty for 45 days, reduction to SR.  No indication of appeal in the record.

010119:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

010119:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

010215:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

010312:	COMNAVAIRLANT Norfolk, VA directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010323 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.  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 nonjudicial punishment (NJP) on one occasion for the commission of a serious offense.  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 or under honorable characterization of service.  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.  

The Applicant’s discharge characterization accurately reflects his service to his country.  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 31, dated 20 Feb 01, effective 25 Jan 01 until 21 Aug 02, 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.
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