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Docket No. ND04-00735

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

ex-ATAA, USN
Docket No. ND04-00735

Applicant’s Request

The application for discharge review was received on 20040330.  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 did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041029.  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 1910-142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “TO WHOM IT MAY CONCERN
      RESPECTFULLY REQUESTING A DISCHARGE UP GRADE AND A CHANGE IN MY R.E. CODE.  DO TO THE FACT I HAVE BEEN CONTEMPLATING RE INLISTMENT”

Documentation

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

Copy of DD Form 214 (Service 8)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	961118 - 970101	COG
	Active:   None	

Period of Service Under Review:

Date of Enlistment:  970102		Date of Discharge:  001031

Length of Service (years, months, days):

	Active:    03  10  00 
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 (12 months extension)

Education Level:  9 (GED)		AFQT:  69

Highest Rate:  ATAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.00 (2)	Behavior:  1.50 (2)		OTA:  2.08

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  118

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-142 (formerly 3630605).  

Chronological Listing of Significant Service Events:

991217:	Civil Conviction:  General District Court, Traffic Division, Municipal Center Virginia Beach, VA 23456 for violation of reckless driving (100/55).
Sentence:  $350.00 fine and $130.00 court costs, 6 months in jail (5 months suspended) sentence served on weekends.

000530:	Applicant UA on or about 0645, 000530 from VFA-105 Virginia Beach Oceana, VA.

000726:	Applicant missed movement of VFA-105 on board USS HARRY S. TRUMAN, from Norfolk, VA.

000925:	Applicant surrendered at 1630, NAS Pensacola, FL.

000926:	Applicant returned to VFA-105 at 2159, Virginia Beach Oceana, VA.

001002:	NJP for violation of UCMJ, Article 86 (4 Specifications):  
Absent without leave/UA (000522 – a period of 35 minutes)
Absent without leave/UA (000523 – a period of 10 minutes)
Absent without leave/UA (000524 – a period of 2 hours, 45 minutes)
Absent without leave/UA (000530 – 000925 inclusive – 118 days lost)
	Award:  Forfeiture of $563.00 per month for 2 months, restriction and extra duty for 30 days, reduction to E-2.  No indication of appeal in the record.

001004:	Applicant notified of intended recommendation for least favorable characterization of service possible is Under Other Than Honorable conditions by reason of misconduct due to the commission of a serious offense.

001004:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

001017:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  Commanding Officer’s comments:  “I recommend ATAA M_ (Applicant) be administratively separated from the Naval Service under Other Than Honorable (OTH) conditions by reason of Misconduct – Due to Commission of a Serious Offense.  Member was absent without leave (UA) for 118 days.  He displays a total disregard for military good order and discipline.  ATAA M_ (Applicant) is mature, not responsible for his actions and cannot be trusted to work on aircraft.  He is unfit for further military service.”

001019:	COMCARGRU TWO authorize discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20001031 under other than honorable conditions for misconduct due to commission of a serious offense (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.   To permit relief, an impropriety or inequity must be found to have existed during the period of enlistment under review.  There was nothing in the records, nor did the applicant provide any documentation, to indicate there existed error of fact, law, procedure, or discretion at the time of discharge.  Relief denied.

Issue 2.  Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reentry into the naval service or any other of the Armed Forces.  The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy or Marine Corps.  Reenlistment policy of the Marine Corps is promulgated by the Commandant, United States Marine Corps, Code MMEA, 3280 Russell Road, Quantico, VA 22134.  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.  

When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  An Under Other Than Honorable Conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by a nonjudicial punishment proceeding for violations of Articles 86 (UA for 118 days) of the UCMJ.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 naval service.  The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any documentation for the Board to consider.  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.  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 30, effective 
30 Aug 00 until 24 Jan 01, Article 1910-142 [formerly 3630605]. SEPARATION 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 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.