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Last saved by: shirley.robertson
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Docket No. ND04-00500

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

ex-FR, USN
Docket No. ND04-00500

Applicant’s Request

The application for discharge review was received on 20040204.  The Applicant requests the reason for the discharge be changed.  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation by the Veterans of Foreign Wars.

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 and narrative reason shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “My name is B_ J_, I was young not ready for the service at that time.  Now I’m 29 years of age, and have a family I wish to go in to the Marine Reserved and serve my country.  The only thing I did was go awol, which is inexcusable.  I understand that this will reviewed in front of peers please.  Please give me another chance to make this wrong, right with my future, some things I realize I can change.  Hopefully with your help this will be one of those thing.  Thank you.”

Additional issues submitted by Applicant’s counsel/representative (VETERANS OF FOREIGN WARS): 

2.  “Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application.  His records were reviewed on July 14, 2004 and the following comments are hereby submitted.

We ask for a careful and considerate review on this application.  We refer this case to the Board for their careful and compassionate consideration.”

Documentation

In addition to the service record, 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: USNR (DEP)	911028 - 920908	COG
	Active:   USN 			None

Period of Service Under Review:

Date of Enlistment:  920909		Date of Discharge:  940705

Length of Service (years, months, days):

	Active:    01  09  27
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  39

Highest Rate:  FN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.80 (1)	Behavior:  2.80 (1)		OTA:  2.80

Military Decorations:  None

Unit/Campaign/Service Awards:  MUC, BATTLE”E”, NDSM

Days of Unauthorized Absence:  78

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

930827:	NJP for violation of UCMJ, Article 86: Absence from unit, organization or place of duty, violation of UCMJ, Article 92: Failure to obey a lawful order or regulation.
	Award: Restriction and extra duty for 15 days, reduction in rate (suspended for 6 months).  No indication of appeal in the record.

9312xx:	Retention Warning from [USS SANTA BARBARA (AE-28)]:  Advised of deficiency (Violation of UCMJ, Article 86 (Unauthorized absence 2 counts) and UCMJ, Article, 87 (Missing movement), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

931218:	Punishment of reduction in rate to E-2 suspended at CO’s NJP of 930816 vacated due to continued misconduct.

931218:	NJP for violation of UCMJ, Article 86: Unauthorized absence (2 Specifications), Specification 1: 931105-931108 (3 days), Specification 2: 931112-931126 (14 days), violation of UCMJ, Article 87: Missing movement.
	Award: Forfeiture of $200.00 pay per month for 1 month, restriction and extra duty for 30 days.  No indication of appeal in the record.
   
940122:	Surrendered onboard COMDESRON FOUR Charleston, SC 0825, 940122.  Transferred to TPU Charleston, SC and placed in restriction in lieu of arrest status pending transportation arrangement by NAVPTO Charleston, SC for return to parent command under technical arrest orders.
 
940220:	Retention Warning from [USS SANTA BARBARA (AE-28)]:  Advised of deficiency (Unauthorized absence (2 counts), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

940308:	NJP for violation of UCMJ, Article 86: Unauthorized absence (2 Specifications), Specification 1: 931220-940122 (33 days), Specification 2: 940206-940215 (9 days), violation of UCMJ, Article 87: Missing movement, violation of UCMJ, Article 134: Breaking restriction.
	Award: Forfeiture of $416.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record
	
940323:	USS SANTA BARBARA (AE-28) notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by all punishments under the UCMJ in your current enlistment.

940323:	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.

940406:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  

940510:	NJP for violation of UCMJ, Article 86: Did on or about 0730, 940324, without authority, absent himself from his place of duty at which he was required to be, to wit: USS SANTA BARBARA (AE-28), located at Naval Weapons Station, Charleston, SC, and did remain so until on or about 0845, 940412 (19 days), violation of UCMJ, Article 87: Did on or about 940407, through design miss the movement of USS SANTA BARBARA (AE-28) which he was required in the course of duty to move.
	Award: Restriction and extra duty for 45 days.  No indication of appeal in the record.

940630:	BUPERS 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 19940705 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.  The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy.  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

Issue 2.  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 punishment (NJP) on four occasions for violations of Articles 86, 87, 92, and 134 of the UCMJ.  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.

The summary of service clearly documents that misconduct, pattern of misconduct, was the reason the applicant was discharged.  No other Narrative Reason for Separation more clearly describes why the applicant was discharged.  To change the Narrative Reason for Separation would be inappropriate.  Relief denied.

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 5, effective 05 Mar 93 until 21 Jul 94), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – A 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.