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Docket No. ND03-00899

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

 ex-AN, USNR
Docket No. ND03-00899

Applicant’s Request

The application for discharge review was received on 20030502.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a personal appearance hearing before the board in the Washington National Capital Region.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

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

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1.  My mom was in the hospital with cancer.  “I haven’t seen my mother in 5 years.”

2.  I was not able to defend myself properly.

3.  Doing my time in ARD my mom was in the hospital with cancer and my little girl mom going over sea and I had to watch her because we didn’t have a baby setter.

4.  I put in two appeal’s and they say they was missplay

5.  Then when my layer when on leave the put me out

7.  I love the sea and the Navy.  I’m a sailor and sailor belong out to see.”

Documentation

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

Letter from Member of Congress to Applicant, dated March 10, 2003
Letter from Member of Congress to Applicant, dated June 27, 2001
Letter from Applicant, undated
Letter from Board for Corrections of Naval Records to Applicant, dated July 11, 2003
DD Form 149 (2)
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive:  USAR (DEP)	9702XX – 9708XX	COG
    USNR (DEP)	970820 –  970820	COG
	Active:     None

Period of Service Under Review:

Date of Enlistment:  970821		Date of Discharge:  010222

Length of Service (years, months, days):

	Active:    03  06  02
	Inactive:  None

Age at Entry:  22			Years Contracted:  4

Education Level:  11			AFQT:  32

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (3)	Behavior:  2.33 (3)		OTA:  Unreadable

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR

Days of Unauthorized Absence:  12

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:

980706:	Applicant to unauthorized absence, 0630, 980706.

980713:	Applicant from unauthorized absence 1830, 980713 (7 days/surrendered).

980813:	NJP for violation of UCMJ, Article 86: Absent from unit, violation of UCMJ, Article 121: Wrongful appropriation of government property.
	Award: Forfeiture of $250 per month for 1 month, restriction and extra duty for 14 days.  No indication of appeal in the record.

980821:	Retention Warning:  Advised of deficiency (Unauthorized absence, wrongful appropriation of government property.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

981221:	Applicant to unauthorized absence, 0700, 981221.

981222:	Applicant from unauthorized absence, 1020, 981222 (1 day/surrendered).

990303:	Applicant to unauthorized absence 0630, 990303.

990307:	Applicant from unauthorized absence 1045, 990307 (4 days/surrendered).

990629:	NJP for violation of UCMJ, Article 128: Assault consummated by a battery.
	Award: Forfeiture of $300 per month for 1 month, restriction and extra duty for 15 days.  No indication of appeal in the record.

000406:	NJP for violation of UCMJ, Article 111: Drunken operation of a vehicle.
	Award: Forfeiture of $400 per month for 2 months, restriction and extra duty for 45 days, reduction to AA.  Reduction suspended for 3 months.  No indication of appeal in the record.

000412:	Retention Warning: Advised of deficiency (Operate a vehicle while drunk.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

000829:	Applicant released from Level III for non-compliance.

000926:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, commission of a serious offense and alcohol rehabilitation failure.

001002:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

001003:	Applicant submitted a conditional waiver.

001018:	Applicant’s conditional waiver denied.

011018:	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, commission of a serious offense and alcohol rehabilitation failure that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

010124:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, commission of a serious offense and alcohol rehabilitation failure.

010201:	Commander, Navy Region, Mid-Atlantic 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 20010222 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).

Issues 1-6:  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a Sailor.  The Applicant’s service record is marred by award of nonjudicial punishment (NJP) on three separate occasions, included the appropriate retention and discharge warnings.  The Applicant’s summary of service clearly reflects the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, and demonstrated he was unsuitable for further service. An upgrade to general (under honorable conditions) is inappropriate.  Relief denied.

Issue 7:  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 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 his 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), 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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