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Docket No. ND04-01056

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

ex-SN, USN
Docket No. ND04-01056

Applicant’s Request

The application for discharge review was received on 20040618.  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 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 20041122.  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.  “ASKING TO CHANGE OR UPGRADE DISCHARGE FROM OTH TO GENERAL UNDER HONORABLE AN RE-4 TO RE-1 FOR REENLISTMENT.”

Applicant marked the box "I HAVE LISTED ADDITIONAL ISSUES AS AN ATTACHMENT TO THIS APPLICATION."  None were found.

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)	970528 - 970903	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  970904		Date of Discharge:  001117

Length of Service (years, months, days):

	Active:    03  02  14
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  41

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF*			Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  NER, AFEM, SSDR, N&MCOSR

Days of Unauthorized Absence:  None

*No marks found in service record.

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:

980710:	NJP for violation of UCMJ, Article 89: Disrespect toward a superior commissioned officer on 980612, violation of UCMJ Article 90: Disobeying a lawful order from a superior commissioned officer on 980612, violation of UCMJ Article 92 (2 specs): (1) Dereliction of duty by failure to cooperate at general quarters drill on 980612, (2) Dereliction of duty by failure to contribute to repair locker readiness during a general quarters drill on 980612.
	Award: Forfeiture of $463 per month for 2 months, restriction for 15 days.  Forfeiture suspended for 6 months.  No indication of appeal in the record.

980818:	Vacate suspended forfeiture awarded at CO’s NJP dated 970710.

980818:	NJP for violation of UCMJ, Article 86: Failed to go to appointed place of duty on 980812, violation of UCMJ Article 89: Disrespectful toward a superior commissioned officer on 980808, violation of UCMJ Article 90: Disobeyed a lawful order from a superior commissioned officer on 980808.
	Award: Forfeiture of $463 per month for 2 months, restriction and extra duty for 45 days.  Forfeiture suspended for 6 months.  No indication of appeal in the record.

990114:	Vacate suspended forfeiture awarded at CO’s NJP dated 980818.

990114:	NJP for violation of UCMJ, Article 91 (2 specs): (1) Disrespectful deportment towards a master chief, (2) Disobeying a lawful order from a Chief Petty Officer, violation of UCMJ Article 92: Failure to report an offense, violation of UCMJ Article 134: Wrongfully receiving money which he was aware of.
	Award: Forfeiture of $479 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

990527:	NJP for violation of UCMJ, Article 92 (2 specs): Disobey a lawful order issued by a Commanding Officer on 990508 and 990509.
	Award: Correctional custody for 30 days.  No indication of appeal in the record.

001013:	NJP for violation of UCMJ, Article 117: Wrongful use of provoking words, violation of UCMJ Article 121: Theft, violation of UCMJ Article 128: Assault, violation of UCMJ Article 134 (2 specs): (1) Drunk and disorderly conduct, (2) Wrongful threat of injury.
	Award: Confinement on bread and water for 3 days.  No indication of appeal in the record.

001019:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

001019:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waived all rights.

001026:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

001030:	COMPHIBGRU ONE 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 20001117 under other than honorable conditions for misconduct due to commission of a serious offense (A & B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

Issue 1.  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 five nonjudicial punishment proceedings for 17 violations of Articles 86, 89, 90, 91, 92, 117, 121, 128 and 134 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.

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 branch of the Armed Forces.  The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy or Marine Corps.  Reenlistment policy of the naval service is promulgated by the Commander, Navy Recruiting Command, 5722 Integrity Drive, Bldg 784, Millington, TN 38054.  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.  

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 30, dated 7 Nov 00, effective 30 Aug 00 until 24 Jan 01, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B.  In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Articles 89, 90, 91 and 92, if adjudged at a Special or General Court Martial

C.  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.  

D.  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.

E.  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.