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Docket No. ND05-00282

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

 ex-IT3, USN
Docket No. ND05-00282

Applicant’s Request

The application for discharge review was received on 20041210.  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 listed the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050713.  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/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I served for over 14 years on active duty no problems.  I earned the Good Conduct Medal.  I did not have a pattern of misconduct.  I had the problem when I came home and discovered that my sister was having problems with a boyfriend that was getting her in trouble with illegal drugs.  At the time I had to choose my sister’s life over the Navy.  Her life was threatened and I was the only hope she had to survive.  I earned the Navy Achievement Medal two times.  I was taught by the Navy to take necessary actions in certain situations when necessary and that is what I did.  I am asking you to take into consideration the many years that I served honorably and the Good Conduct Medal and the Navy Achievement Medal (2).  I never had a pattern of misconduct and I wanted to continue serving my country.  The problem was taken care of that caused my mistake that I made.  I want to serve my country.  My 14 years of honorable service should be enough to grant forgiveness and another chance to serve.  I am asking that my RE4 be changed so that I can again serve.”

Additional issues submitted by Applicant’s representative (American Legion):

“Equity Issue:  Based on our review of evidentiary record and on behalf of this former member, we request that the Board also consider provisions of SECNAVINST 5420.174D, Part V, Paragraph 503, as it pertains to post-service conduct, in assessing the merits of this application. 

In accordance with Title 32, CFR, Section 724.116 and SECNAVINST 5420.174D, Part I, Paragraph 1.20, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement in supplement to the Applicant’s petition.

The Board’s attention is invited to Blocks 12 and 18 of DD Form 214.  This former member had 3 prior honorable discharges.  Block 18 should include “Continuous Honorable Active Service from 850806 to 980430” and appropriate corrections made to Block 12.

Please inform this Applicant that reenlistment codes are not within the Board’s purview.

Review of the available records reflect that this former member received 3 prior honorable discharges and earned the SSDR (2), GCM (4), NDSM, NUC, SASM (w/star), KLM (K), OSR (3), NAM (2), ESWSBI, KLK (SA), NRSR FLOC (2), and maintained 4.0 performance and 4.0 conduct markings.  He was awarded NJP on 000106 for VUCMJ, Article 86 and NJP on 000612 for VUCMJ, Article 86.  Following due process notifications, he was discharged Under Other Than Honorable Conditions due to a pattern of misconduct as authorized by NAVMILPERSMAN, Article 1910-140.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because family problems, his sister’s drug use, contributed to and sufficiently mitigated his misconduct of record.  He has submitted 5 pages of additional documentation attesting to his good post service character for consideration.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by Title 10, USC, Section 1553 and set forth in Title 32, CFR, Part 724 and SECNAVINST 5420.174D.

This case is now respectfully submitted for deliberation and disposition.”

Documentation

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

Applicant’s DD Form 214
Character reference, dated October 20, 2004
Character reference, dated October 25, 2004
Character reference, dated October 17, 2004
Character reference, dated October 26, 2004
Character reference, dated October 12, 2004

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	841017 - 850805	COG
	Active:   USN 			850806 - 890810	HON
		   USN			890811 - 940623	HON
		   USN			940624 - 980430	HON

Period of Service Under Review:

Date of Enlistment:  980501		Date of Discharge:  000727

Length of Service (years, months, days):

	Active:    02 02 27	Does not exclude lost time (total service time 14 09 21)
	Inactive:  None

Age at Entry:  30			Years Contracted:  4

Education Level:  12			AFQT:  53

Highest Rate:  IT1

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.50 (2)		Behavior:  4.00 (2)		OTA:  4.15 (2)

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM (4), SSDR (2), NDSM, NUC, SASM with 2 Bronze Stars, KLM (K), OSR (3), NAM (2), ESWS, KLK (SA), NRSR, FLoC (2)

Days of Unauthorized Absence:  60

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

Chronological Listing of Significant Service Events:

980501:	Applicant reenlisted for 4 years.

981002:	Reported for duty, Recruit Training Command, Great Lakes.

991129:	Applicant to unauthorized absence 0730.

991203:	Applicant from unauthorized absence 1320, (4 days/surrendered).

000106:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 0730, 991129 to 1320, 991203 (4 days).
	Award: Forfeiture of $922.50 per month for 2 months, reduction to E-5.  Reduction suspended for 6 months.  No indication of appeal in the record.

000106:	Retention Warning: Advised of deficiency (Unauthorized absence from 0730, 991129 until 1320, 991203.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

000126:	Applicant to unauthorized absence 1610.

000226:	Applicant declared a deserter.

000323:	Applicant from unauthorized absence 1220, (56 days/apprehended).

000410:	Vacate suspended reduction to E-5 awarded at Commanding Officer’s NJP dated 000106 due to continued misconduct.

000424:	Applicant letter to commanding officer, requesting other than honorable discharge in lieu of special court martial.

000424:	Applicant requests separation in lieu of court-martial.  Applicant admits guilty of violating Article 85.

000523:	Applicant requests non-judicial punishment in lieu of court-martial.

000601:	Charges preferred against Applicant on 000410 are hereby withdrawn.

000612:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 000126 to 000323.
Award: Forfeiture of $778.35 per month for 2 months, restriction and extra duty for 45 days, reduction to E-4.  No indication of appeal in the record.

000612:	Applicant notified of intended recommendation for discharge by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct.  The least favorable characterization of service possible is Under Other Than Honorable Conditions.

000612:	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.

000712:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct.

000712:	Commander, Naval Training Center, Great Lakes directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

000727:	Discharged.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000727 under other than honorable conditions for misconduct due to a pattern of misconduct (A).  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 (B and C).

Issue 1:  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 or inequity after a review of Applicant’s case.  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.  Despite the servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  There is credible evidence in the record that the Applicant was absent without leave.  The Applicant’s service was marred by two nonjudicial punishment proceedings for violations of UCMJ Article 86 (unauthorized absence), thus substantiating the misconduct for which he was separated.  Other factors affecting the Applicant’s classification of service are his seniority and the conclusion of desertion by apprehension.  Separation under these conditions generally results in characterization of service of under other than honorable conditions.  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 short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant contends that his problems in the Navy can be attributed to his "sister getting into trouble with illegal drugs".  The Applicant bears the burden of presenting substantial and credible evidence to support his issue.  He provided no documentation with which to verify the life and death urgency of his sister’s situation, which he believes justifies his unauthorized absence.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. While he may feel that his sister’s drug problem was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  Relief denied.

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’s issue is without merit.  Relief denied.

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 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.  The Applicant submitted five letters of recommendation.  Based on a lack of sufficient post service factors 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 18, effective
12 Dec 1997 until 21 Aug 2002, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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

C.  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.