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Docket No. ND04-00785

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

ex-AOAA, USN
Docket No. ND04-00785

Applicant’s Request

The application for discharge review was received on 20040412.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20050224.  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.  “April 1, 2004

To whom it concern,

The reason why I’m requesting a change of discharge characterization is because I was never offer the “second chance program.”  Why I say that is because my first captain mast was assault against an chief petty officer.  It was May 5, 2003, and I was mess cranking.  I told SN N_, I was going on a smoke break & she said ok.  So me and a shipmate FN B_ was walking through the aft gallery.  Then a shipmate from behind said shipmate take off your cover & a shipmate tap me and said, the guy back there said take off your cover.  So I said ok, and I took off my cover.  Then the same shipmate who told me before to take off my cover, then told me to fix me collar, I did so.  Then he rush through the crowd.  At this point we’re in the pee-way frame of 180.  He grab my arm from the back and said, “didn’t you hear me fix your collar,” and then snatch my arm away.  Then I told him, “don’t you ever put your hands on me like that ever again you don’t have to touch me to talk to me to get you’re point across.  

Then I walk off.  Then he told me, “if I have to touch you again you want like it.”  Then he run behind me grabbing my arm again from behind, then started poking me in the chest with two finger’s.  After that he began saying “I want be f_ disrespected by a f_ airmen.”  Im a chief petty officer of the Navy.”  While still poking me I push the chief into the bulkhead, then start choking the chief, &only reason I did that is because I feel as do I had to defend myself against the chief.  So after that I try to walk off again.  As soon as I try to take an step forward something told me to look behind me, then I see chief trying to swing at me, I duck and hit him twice.  And walked off, two chief’s jump on me, a petty office & officer.  Second captain mast was coming back one day late off leave, I call one of my third class petty officer to ask one of our khaki’s to try to extend my leave, he said he’ll take care of it.  Third captain mast I went UA on restriction because I receive a troubling letter from my mother saying she going through financial problem and she need help 

So I left gave her money to take care of her problem.  The only reason I didn’t talk to my chain-of-command is because they wouldn’t have help me out.  So I came back on my own an finish off my punishment.  While dealing with my first downfall, I was being harash by several chief’s, I reported it to my chain-of-command nothing was done about it.  I’m not saying what I done was right or wrong Im just saying I have to pay for my mistake’s, and I know what I have done, may not look like I want to be in the navy, but that’s a lie.  I allow other’s to help me destroy my Navy Career.  I ask you this before you say no, & reject me just think about the problem’s, test, setback’s, & people who make it hard for people who want to succeed.  All Im asking for is my second chance is that to much to ask.

Your Shipmate For Life, 

AOAA B_ A. W)
U.S. Navy
CVN (76) Ronald Reagan”

Documentation

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

Adverse Performance Evaluation Report, dated 27 Jun 2003
Evaluation Report & Counseling Record, 02JUL16 to 03FEB28 (2 pages)
Schools History Report, dated 28 Oct 2003
NAVPERS 1070/613, Administrative Remarks, dated 25 Jan 2002
NAVPERS 1070/613, Administrative Remarks, The Ronald Reagan Rules, dated 07 Jan 2002

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	010531 - 010605	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  010606		Date of Discharge:  031104

Length of Service (years, months, days):

	Active:    02  05  05 (Does not include lost time)
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12 ½ 			AFQT:  32

Highest Rate:  AOAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (1)		Behavior:  3.00 (1)		OTA:  3.00

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  11

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:

030606:	NJP for violation of UCMJ, Article 91:  Contempt or disrespect toward a chief petty officer; violation of UCMJ Article 92:  Failure to obey other lawful order; violation of UCMJ Article 95:  Resisting apprehension; violation of UCMJ Article 128:  Assault upon a person in the execution of law enforcement duties.
	Award:  Forfeiture of ½ month’s pay per month for 2 months (suspended 6 months), restriction and extra duty for 30 days.  No indication of appeal in the record.

030609:	Retention Warning:  Advised of deficiency (CO’s NJP of 030606 for VUCMJ, Article 91, contempt or disrespect toward a chief petty officer, Article 92, failure to obey other lawful order, Article 95, resisting apprehension, and Article 128 assault upon a person in the execution of law enforcement duties.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

030814:	Suspension of forfeitures from CO’s NJP of 030606 vacated this date.

030814:	NJP for violation of UCMJ, Article 86 (3 specifications):  Unauthorized absence from place of duty on 030709, unauthorized absence from 030721 to 030723, unauthorized absence from place of duty on 030725.
Award:  Restriction and extra duty for 20 days, reduction in rate to E-2.  No indication of appeal in the record.

030911:	NJP for violation of UCMJ, Article 86:  Unauthorized absence from 030815 to 030825; violation of UCMJ Article 87:  Missed ships movement; violation of UCMJ Article 134:  Breaking restriction.
Award:  Forfeiture of ½ month’s pay per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

030916:	Applicant diagnosed Axis I:  Alcohol Dependence, Axis II: Antisocial personality disorder.  The psychiatrist recommended separation based on a long standing disorder of such severity as interfere with serving adequately in the navy.  While Applicant is not imminently suicidal or homicidal, he is at risk to harm self or others and should be separated as soon as possible.

031005:	Applicant notified of intended recommendation for discharge by reason of misconduct due to pattern of misconduct, by reason of the commission of a serious offense, and by reason of convenience of the government - personality disorder.  Applicant notified that if discharge is approved, the least favorable characterization of service possible is under other than honorable conditions.

031005:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation and to submit a statement to the separation authority in lieu of a Board.

031022:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct, by reason of misconduct due to the commission of a serious offense, and by reason of convenience of the government - personality disorder.

031031:	COMNAVAIRLANT directed the Applicant's 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 20031104 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:  Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question.  No such impropriety or inequity is evident during the Applicant’s enlistment.  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 insubordinate conduct, unauthorized absences, missing ship’s movement, orders violations, restriction breaking, resisting apprehension, and assault upon a person in the execution of law enforcement duties.  This misconduct resulted in three separate nonjudicial punishment proceedings for violations of UCMJ Articles 86, 87, 91, 92, 95, 128 and 134.  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.  Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service.  Relief is not warranted.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  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.

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), re-issued October 2002, effective 22 Aug 02 until Present, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review 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.