Author: CAP
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Docket No. ND05-01320

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

FOR OFFICIAL USE ONLY

 ex-AZAN, USN
Docket No. ND05-01320

Applicant’s Request

The application for discharge review was received on 20050809.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to entry level separation or uncharacterized.  The Applicant requests a documentary record discharge review.  The Applicant designated American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060420.  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 reason for discharge shall not change.  The discharge shall remain General (Under Honorable Conditions) by reason of misconduct due to commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application: 

“The reason I am petitioning the board is because I would like to re-enter the armed forces.  I received a general discharge (under honorable conditions) but my re-enlistment code is n RE-4 code.  I have been out of the military almost a year after being in for 6 years.  I think if given another chance that I could retire from the military.  You don’t really appreciate something until you don’t have it anymore and that is how I feel about the military.”

Although the Applicant indicated on the DD Form 293 that additional issues were attached to the Application, none were found.

Documentation

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

Applicant’s DD Form 214
Applicant’s DD Form 215

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	19990630 – 19991129		COG
	Active:   USN 			19991130 – 20040603		HON

Period of Service Under Review:

Date of Enlistment:  20040604		Date of Discharge:  20040902

Length of Service (years, months, days):

	Active:    00  02  29  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:	None
	Confinement:			None

Age at Entry:  25 

Years Contracted:  3 

Education Level:  12				AFQT:  58

Highest Rate:  AZ2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NA*		Behavior:  NA*	OTA:  NA*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Sea Service Deployment Ribbon (4), Navy/Marine Corps Overseas Service Ribbon (4), Navy “E” Ribbon (2), National Defense Service Medal, Enlisted Aviation Warfare Specialist, Navy and Marine Corps Achievement Medal, Pistol Marksman Ribbon, Good Conduct Medal.

* Not Available

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  MILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events: 

040604:	Reenlisted this date for a term of 3 years.

040712:	NJP for violation of UCMJ, Article 111:  In that AZAN B_ (Applicant), on active duty, did, on or about 2300, 040710, physically control a vehicle while the alcohol concentration in his breath was .120 grams of alcohol per 210 liters of breath or greater as shown by chemical analysis.
Award:  Forfeiture of $842.00 pay per month for 1 month, restriction and extra duty for 30 days, reduction to E-3.  No indication of appeal in the record.

040714:	Applicant notified of intended recommendation for discharge by reason of misconduct commission of a serious offense.  Applicant notified that the least favorable characterization of service possible is general (under honorable conditions).  Applicant was not offered the right to elect GCMCA review.

040714:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

040714:	Commanding Officer, USS ESSEX (LHD 2) approved discharge with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense.  Commanding Officer’s comments:  “AZAN B_’s (Applicant) Commission of a Serious Offense has clearly demonstrated that AZAN B_ does not have a desire to adhere to basic Navy standards.  AZAN B_’s misconduct is detrimental to good order and discipline.  AZAN B_ does not have rehabilitative potential nor will AZAN B_ become an asset to the Navy in the future.  AZAN B_ has been an excellent worker between episodes of disciplinary and alcohol problems.  Accordingly, I therefore approve AZAN B_ be separated from the United States Navy with a General discharge.”

040813:	Applicant completed the recommended 20 hour Alcohol IMPACT class this date.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040902 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of general (under honorable conditions).  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).  

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.  A general (under 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 nonjudicial punishment proceedings for a violation of UCMJ Article 111, drunken operation of a vehicle.  Under applicable regulations, a violation of UCMJ Article 111 is considered a serious offense.  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.

The NDRB did note a technical impropriety in the Applicant’s separation processing.  The record indicates that the Applicant was not afforded the right to elect General Court-martial Convening Authority Review (GCMCA) in his separation processing.  Servicemembers who have less than six years of active duty service must be offered the right to have their case reviewed by a general court-martial convening authority.  Under the NDRB’s governing instruction, a discharge shall be deemed proper unless an error of fact, law, procedure, or discretion associated with the discharge existed and thereby prejudiced the Applicant’s rights.  An error shall constitute prejudicial error if there is substantial doubt that the discharge would have remained the same if the error had not been made.  After careful consideration and deliberation, the NDRB concluded that although an error of procedure occurred, such error did not cause the Applicant substantial prejudice.  Misconduct by reason of commission of a serious offense typically results in an under other than honorable conditions discharge.  The Applicant was fortunate enough to receive a general (under honorable conditions) discharge despite his serious misconduct.  Furthermore, there is nothing unusual or exceptional in the Applicant’s service record that would cause the Board to reasonably believe a GCMCA might have authorized an honorable discharge.  Therefore, the NDRB is convinced that this procedural error was not prejudicial to the Applicant and therefore affords him no relief.  There is little doubt to the NDRB that the discharge would have remained the same if the error had not been made and thus relief based upon this error 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 25 April 2005, Article 1910-142 [formerly 3630605], SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 111, drunk or reckless operation of a vehicle.

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