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Docket No. ND04-00496

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

ex-AR, USN
Docket No. ND04-00496

Applicant’s Request

The application for discharge review was received on 20040203.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  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 20040922.  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 1910-144 (formerly 3630610).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I am requesting a change so I can rejoin the Navy.
I was told that after six months of my discharge I could rejoin.
I am requesting general to be able to rejoin the military”

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	020827 - 021105	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  021106		Date of Discharge:  030624

Length of Service (years, months, days):

	Active:    00  07  19
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  34

Highest Rate:  AR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NOB			Behavior:  2.00 (1)		OTA:  2.00

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  42

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 1910-144 (formerly 3630610).

Chronological Listing of Significant Service Events:

030209:	Applicant arrested by Gulf Breeze Police Department and charged with reckless driving, DUI and serious bodily injury to another, operate a vehicle while suspended/ cancelled/revoked with knowledge.

030210:	Applicant to unauthorized absence 0700, 030210.

030211:	Applicant from unauthorized absence 0800, 030211 (1 day/surrendered).

030324:	Applicant to unauthorized absence 0700, 030324.

030402:	Applicant from unauthorized absence 0700, 030402 (9 days/surrendered).

030415:	Applicant to unauthorized absence 0545, 030415.

030417:	Applicant from unauthorized absence 0600, 030417 (2 days/surrendered).

030417:	Applicant to unauthorized absence 1130, 030417.

030428:	Applicant  from unauthorized absence 1045, 030428 (10 days/ surrendered).

030506:	Applicant delivered to Santa Rosa FL county jail 0800, 030506.

030506:	Civil Conviction:  Santa Rosa County Court for violation of driving under the influence and operating a vehicle while license suspended/cancelled/ revoked with knowledge.
Plea: Nolo contendere to driving under the influence and operating a vehicle while license suspended/cancelled/revoked with knowledge.
Sentence: Fined $550.00, drivers license revoked for 6 months, supervised probation for 1 year ($50.00 per month probation fee), community service for 50 hours (10 hours a month), alcohol evaluation within 30 days, alcohol counseling within 45 days, attend 1 victim impact session.

030520:	Applicant released from confinement 0245, 030520 and returned to NATTC Pensacola, FL (13 days/IHCA).

030520:	Applicant to unauthorized absence 0345, 030520.

030527:	Applicant from unauthorized absence 0953, 030527 (7 days/surrendered).

030618:	NJP for violation of UCMJ, Article 86 (6 specs): (1-2) Unauthorized absence - less than 24 hours (2 specs), (3-6) Unauthorized absence, total of 24 days (4 specs).
	Date of offenses: 030128, 030201, 030211, 030417, 030520, 030527.
	Award: Forfeiture of $575 per month for 2 months, restriction and extra duty for 30 days.  No indication of appeal in the record.

030618:	Applicant refused treatment and counseling for alcohol/substance abuse.

030618:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to civil conviction.

030618:	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.

030620:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to civil conviction.

030623:	Commander, Naval Personnel Development Center directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to civil conviction.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030624 under other than honorable conditions for misconduct due to civil conviction (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:  The Applicant states that he was told that after six months he could have his discharge upgraded.  There is no law or regulation that authorizes a discharge to be automatically upgraded after six months.  The Board does not automatically upgrade a discharge after six months.  The Applicant’s service was marred by the award of nonjudicial punishment (NJP) for violating UCMJ, article 86, on six occasions and a civil conviction thus substantiating the misconduct.  An upgrade to honorable would be inappropriate.  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.  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.  

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.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  Evidence of continuing educational pursuits, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.   At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.  

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.  The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 02 until Present, Article 1910-144 (previously 3630610), Separation by Reason of Misconduct - Civilian Conviction. 

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.