Author: CAP
Last saved by: Department of the Navy
Company: NCPB

Docket No. ND03-00971

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

 ex-FA, USN
Docket No. ND03-00971

Applicant’s Request

The application for discharge review was received on 20030513.  The Applicant requests the characterization of service received at the time of discharge be changed to entry level separation or uncharacterized.  The Applicant requests a personal appearance hearing before the board in the Washington National Capital Region.  The Applicant listed the American Legion as the 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 20040408.  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.  “I was young and stupid and wrong to go on unauthorized absence but I only wish to re-enter to serve my country and make right what I wronged.  Please waive my reenlistment status.  I am not looking to change my status for benefits or honors I just want to serve my country- and I would be an asset.  I am older and grown out of my stupidity.  I’m going to church, work a job and paid my debts, and am now disciplined.  I have submitted this form 2 other times to the V.A. in New Orleans – they lost the first one in November 2002 and lost the attached paperwork in March 2003.
Please help me.  I would like to change my re-status.  So I may enter the United States Marine Corp.”

Additional issues submitted by Applicant’s representative (American Legion):

“2  (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.”

Documentation

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

Applicant’s DD Form 214
Character reference from Pastor B_ M_, dated November 15, 2002
Character reference from GNO Partner B_ W_, dated March 15, 2003
Certificate of completion, dated June 1, 2000
Certificate of completion, dated January 27, 2000
Certificate of completion, dated June 29, 2000
Character reference from Senior Pastor D_ S_, dated June 2, 2003
Letter from Applicant, undated
Eight pages from Applicant’s service/medical records

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	990715 - 991006	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  991007		Date of Discharge:  000929

Length of Service (years, months, days):

	Active:    00  11  23
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  11 GED		AFQT:  46

Highest Rate:  FN

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:  32
*No Marks Found

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:

000223:	NJP for violation of UCMJ, Article 92: Wrongfully drinking alcoholic beverages under the age of 21 on 000130, violation of UCMJ, Article 134: Drunk and disorderly on 000130.
	Award: Forfeiture of $502 per month for 2 months, restriction and extra duty for 45 days, reduction to FR.  Restriction and extra duty for 15 days and reduction suspended for 6 months.  No indication of appeal in the record.

000223:	Retention Warning:  Advised of deficiency (Disobey a lawful general regulation by wrongfully consuming alcoholic beverages while under the age of 21 and drunk and disorderly.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

000625:	Applicant completed alcohol impact.

000823:	Vacate suspended restriction, extra duty and reduction awarded at CO’s NJP dated 000223, due to continued misconduct.

000823:	NJP for violation of UCMJ, Article 86 (4 specs): (1) Unauthorized absence from 0600, 000710 to 1720, 000720 (10 days), (2) Unauthorized absence from 1842, 000720 to 2200, 000803 (12 days), (3) Unauthorized absence from 1300, 000804 to 1200, 000810 (5 days), (4) Unauthorized absence from 0600-0900, 000822, violation of UCMJ, Article 92 (2 specs): (1) Wrongfully drinking alcoholic beverages under the age of 21 on 000629, (2) Willfully disobey a lawful order received from Captain, to wit: to have no contact with Ms. A_ R_ on 000817, violation of UCMJ, Article 121: Wrongfully steal four packs of cigarettes on 000720, a value of $13.00, the property of the Navy Exchange, violation of UCMJ, Article 128: Assault FN by wrongfully punching in the chest on 000629.
	Award: Forfeiture of $502 per month for 2 months, restriction and extra duty for 45 days, reduction to FA.  No indication of appeal in the record.

000823:	Applicant notified of intended recommendation for 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.

000823:	Applicant advised of 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 

000828:	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.

000830:	Commander, Naval Training Center, Great Lakes, IL directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

000901:	Applicant to unauthorized absence 1900, 000901.

000907:	Applicant to unauthorized absence 1530, 000907 (5 days/surrendered).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000929 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:  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the Applicant’s enlistment.  While he may feel that his youth and immaturity were contributing factors, they do not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service.  His service record is marred by award of nonjudicial punishment (NJP) on two separate occasions thus substantiating the misconduct.  
Relief denied.

Regarding the Applicant’s request to change the characterization of enlistment to uncharacterized or entry level separation, by regulation, only members discharged within the first 180 days of their first enlistment can be given this kind of discharge.  Since the Applicant served in excess of 11 months, he cannot be given an uncharacterized or entry level separation.  

Issue 2:  Concerning a change in reenlistment code, 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.
INDEX: