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Docket No. ND03-01513

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

ex-ABFAA, USNR
Docket No. ND03-01513

Applicant’s Request

The application for discharge review was received on 20030924.  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 listed American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040921.  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 3630605.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “My discharge was inequitable because it was based on one isolated incident in 30 months of active service with no other adverse action.

Request change to honorable discharge.

Request re-enlistment code change from RE-4 to RE-1 to make me eligible for re-enlistment in U.S. Army Warrant Officer Flight program.”

Additional issues submitted by Applicant’s counsel/representative (AMERICAN LEGION): 

2.  “Equity Issue:  Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application. 
_______________________________________________________________________

In accordance with 32 C.F.R., section 724.166, and SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement in supplement to this Applicant’s petition.

Please inform this former member that reenlistment codes are not with in the Board’s purview.

The service record is incomplete.  In particular, the discharge package is missing.  Review of the available records reflect that this former member maintained satisfactory performance and conduct markings with an ITA of 3.48 and earned the SSDR, NUC, NDSM, SASM, AFEM, and NM.  On 990430, he was awarded NJP for VUCMJ, Art. 86 (2 specs).  On 961119, he was convicted by SCM for VUCMJ, Arts. 86 (5 specs), 87.  He was discharged with an Under Other Than Honorable Conditions due to the misconduct as authorized by NAVMILPERSMAN, Art. 3630600.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because his misconduct was an isolated incident in an otherwise creditable 30 months of service.  He has not submitted any additional documentation for consideration.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553, and set forth in 32 C.F.R., part 724 and SECNAVINST 5420.174C, enclosure (1).

This case is now respectfully submitted for deliberation and disposition.”

Documentation

In addition to the service record, NO DISCHARGE PACKAGE AVAILABLE, the following additional documentation, submitted by the Applicant, was considered:

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: 	None
	Active:   	None

Period of Service Under Review:

Date of Enlistment:  930930		Date of Discharge:  970128

Length of Service (years, months, days):

	Active:    02  10  09
	Inactive:  00  03  09

Age at Entry:  19			Years Contracted:  3

Education Level:  12			AFQT:  84

Highest Rate:  ABFAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (1)	Behavior:  3.00 (1)		OTA:  3.10 (5.0 Evals)
Performance:  3.80 (1)	Behavior:  3.80 (1)		OTA:  3.80 (4.0 Evals)

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, NUC, NDSM, SASM, NM

Days of Unauthorized Absence:  62

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630605.

Chronological Listing of Significant Service Events:

940110:	Commenced 36 months of active duty under the Airman Apprenticeship program.
 
960620:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 960618 having been an unauthorized absentee since 0700, 960517 from USS ROOSEVELT (CVN-71).

960709:	Report of Return of Deserter.  Applicant apprehended by [military authorities] on 960629 (1530) at Hampton Area Shore Patrol. Returned to military control 960629 (1530).  Transferred onboard USS THEODORE ROOSEVELT (CVN-71) at 1700, 960629.  Retained onboard for completion of disciplinary action.

961109:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86: (5 Specifications).
	Specification 1: UA from unit 0645, 960311 to 0120, 960316 (5 days/S), Specification 2: UA from unit 0600, 960329 to 1930, 960410 (11 days/S), Specification 3: UA from unit 0700, 960508 to 1300, 960509 (1 day/S), Specification 4: UA from unit 0700, 960517 to 1530, 960629 (41 days/A), Specification 5: UA from unit 0700, 960723 to 0010, 960727 (4 days/S).  Charge II: violation of the UCMJ, Article 87: Missing ship’s movement on 960528.
	Finding:  to Charge I and the specifications 1 through 5 thereunder, guilty. To Charge II and the specification thereunder guilty.
	Sentence:  Confinement for 15 days, forfeiture of $100.00 pay per month for 1 month, reduced to E-2.
CA action 961125:  Sentence approved and ordered executed.

961125:	Released from confinement and restored to full duty.

970128:	Applicant discharge Under Other Than Honorable Conditions by reason of misconduct due to the commission of a serious offense per CO, CVN 71 LTR 1910 SER N02L/435 21DEC96//MILPERSMAN 3630600 [Extracted from DD Form 214].

NO DISCHARG PACKAGE AVAILABLE

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19970128 under other than honorable conditions for misconduct due to the commission of a serious offense (A).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).    

Issue 1.  The Applicant states his discharge was based on one isolated incident with no other infractions.   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 a summary court-martial for violations of Articles 86 (5 Specifications) and 87 of the UCMJ.  The Applicant’s service was marred by award of a summary court-martial.  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 (general) characterization of service.  Relief denied.

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.  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.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

Issue 2.  The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an procedural 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.  Relief not warranted.

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.  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 14, effective 
03 Oct 96 until 971212, Article 3630605, SEPARATION OF ENLISTED PERSONNEL 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 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

C.  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.

D.  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.  

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.