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Docket No. ND03-00876

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

 ex-LISR, USN
Docket No. ND03-00876

Applicant’s Request

The application for discharge review was received on 20030422.  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 20040401.  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.  “Upon completion of High School, I decided to try the work force.  Getting a job at Federal Express (FEDEX) allowed me time to think about what I wanted to accomplish in the future.  After six months of employment there I decided to join the United States Navy.  I felt this was the best path for me to take for various reasons.  The military proved to be challenging, but I overcame those challenges.  Entering into the Navy as an E-2 in March of 2001 and making E4 by March of 2002, I achieved and excelled beyond many of my personal expectations.  Although onboard the USS Frank Cable at least every other week someone was being discharged from the Navy, or females were getting pregnant to leave the command everything was looking brighter for my future until the 21st of September 2002.

On this date I celebrated a friend’s birthday In doing so I also broke the midnight curfew imposed upon all E-4 and below.  The celebration took place at a night club in Yokohama, Japan.  We were there for few hours when we decide to leave.  Enroute to the Yokosuka Naval Base we got in an accident.  And accident which proved to be fatal for the driver, a very close friend of mine.  Throughout the entire accident I was in the front passenger seat tight next to him.  The rest of the day was very chaotic.  From being questioned by Japanese authorities, to Yokosuka Base authorities, to the Master-at-Arms as well as Doctors onboard my ship.

I was sent to a counselor who worked at the Fleet and Family service center in Yokosuka, Japan  Because my ship was getting underway in a few days she referred me for more counseling upon arrival in Guam.  While underway I was put on restriction.  And I never received further counseling.  Throughout these days I didn’t have the time to come to terms with losing my fiend, and I began to lose respect for the higher in rank on board my ship.  I couldn’t speak with my family as freely as I would have liked to.  I withdrew from just about everything Finally the day came for me to get off restriction and a few of my friends from the ship wanted to take me out to have a little bit of fun.  We went and ate dinner then they decided we would go to a night club.  At about 2330 to 2340 we departed the club.  When we got to the parking lot the driver realized she locked her keys in the car.  So we culled another friend of ours to pick us up.  At the same time she parked her car, liberty patrol was right behind her.  It happened to be past midnight, again.  For this offence they took my third class ranking.

After this incident took place I decided to get a vehicle of my own I moved in with a few friends and my vehicle was to travel to and from work.  Occasionally going to the mall or the movies.  Then on a Thursday I borrowed money from a friend promising I would return it on Friday.  I forgot that I had duty that day.  I went to the batik that day, and was considered U/A.  For this offence I was again put on restriction us well as seperated from the Navy.  I take full responsibility for the punishments awarded to me with the exception of being discharged front the military

I joined the military with aspirations of excelling in the United States Navy.  If given another chance in the military I know I would exceed beyond many if not all of my expectations.  I have not lost any respect for the United States Navy nor anything it teaches us to believe in.  I would very much like another chance to proudly serve my country.  Because the USS Fank Cable failed to render the proper treatment requested by myself and the counselor at the Fleet and Family Service Center, I would like to be granted my E-4 ranking back or u least E-2 which is the rank I originally began with so that I may continue in the career I wished for.”

Documentation

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

Applicant’s DD Form 214
VA Form 21-22

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	010208 - 010312	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  010313		Date of Discharge:  030214

Length of Service (years, months, days):

	Active:    01  11  02
	Inactive:  None

Age at Entry:  28			Years Contracted:  4

Education Level:  12			AFQT:  Unknown

Highest Rate:  LI3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.67 (3)	Behavior:  2.33 (3)		OTA:  2.61

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, N&MCOSR, NER (2)

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:

021002:	NJP for violation of UCMJ, Article 92: Failure to obey lawful written order.
	Award: Forfeiture of $722 per month for 1 month, restriction and extra duty for 30 days, reduction to LISN.  Reduction suspended for 6 months.  No indication of appeal in the record.

021002:	Retention Warning: Advised of deficiency (Failure to obey other lawful written order.  This is unacceptable.  If you continue to engage in misconduct, your service record may reflect misconduct due to a pattern of misconduct as described in MILPERSMAN 1910-140.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
021102:	Retention Warning: Advised of deficiency (Failure to obey lawful general order by violation of Commander, Seventh Fleet Liberty Policy.  This is unacceptable. If you continue to engage in misconduct, your service record may reflect misconduct due to a pattern of misconduct as described in MILPERSMAN 1910-140.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
021106:	Vacate suspended reduction to LISN awarded at CO’s NJP dated 021002.

030108:	NJP for violation of UCMJ, Article 86 (3 specs): Leaving place of duty and failing to go to appointed place of duty, violation of UCMJ, Article 107: False official statement.
	Award: Forfeiture of $645 per month for 2 months, restriction and extra duty for 45 days, reduction to LISA.  No indication of appeal in the record.

030108:	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 the commission of a serious offense.

030108:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

030119:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to the commission of a serious offense.

030110:	Commander Submarine Force, U.S. Pacific Fleet 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 20030214 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 punishments (NJP’S) on two separate occasions, and adverse counseling entries on other occasions.  Additionally, there is no evidence the Applicant was denied counseling or that this contributed/explained her misconduct.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects her 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 to honorable would be inappropriate.  It must be noted that most Sailors serve honorably and well and therefore earn honorable discharges.  In fairness to those Sailors, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  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.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Additionally, the Board can authorize a restoration of pay grade.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes and restore a pay grade.

The following is provided for the edification of the applicant.  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 naval service.  The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  

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 other evidence related to her discharge 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), re-issued October 2002, effective 22 Aug 02 until Present, 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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