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

FOR OFFICIAL USE ONLY

ex-AA, USN
Docket No. ND06-00012

Applicant’s Request

The application for discharge review was received on 20050928.  The Applicant requests the Discharge 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 designate a representative on the DD Form 293.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060628.  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 and 3 to 2 that the 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 and attached letter:

“My discharge was improper because it was based on two family incidents that happen while at a temporary training station.  If it would have happen at a permanent duty station it would have been handle better.  The C.O. asked me did I want to stay in the Navy or go home to care for my mother.  I said yes I needed to return home, but I asked her would it be possible for me to re- enlist maybe in a few years and she said yes.  She did inform me that I would not receive a honorable discharge, but could have it changed later.  I was not informed about a RE-4 code or the meaning of it.”

“My name is D_ M_ and I’m requesting an upgrade of my discharge & RE-4 code.  At the time of my discharge I was 22 yrs old.  I honestly didn’t appreciate nor fully understand the many advantages that I received because I was in the U.S. Military.  I would re-enlist if my RE-4 code were upgraded.  I served 21/2 yrs. {OCT.94-MAR.97} and had just completed a West Pac in November 1996.  The problem started before I came home from the cruise, but I was already scheduled to attend A-school in Jan. 1997.  My parents were fighting daily, because my father was using drugs at the time.  On November 17th my mother had to have back surgery mainly because of a fight between them.  She was afraid of him and I felt that it was time for me to take care of her.  Also my son, daughter, and younger sisters were there most of the time.  So I started driving to Birmingham from Meridian on the weekend.  The command found out on two different occasions.  The last time was because I was in a bad car wreck about 3:00 a.m. coming back for duty that morning.  My C.O. said she didn’t understand my reason for wanting to go home, but asked me did I want to leave the military and go home or stay.  I didn’t want to leave but felt at the time that I had to.   Things have gone well since I came home.  My parents divorced, which is great for my mother.  She has her own church [Christ Ministry] and I’ve had my own business [M_ Enterprises, LLC] since 2001.  I respect the military and loved my time in the Navy, so that is my reason for requesting and upgrade of my RE-4 code and discharge.

THANKS FOR YOUR TIME,

God Bless”

Documentation

Only the service and medical records were reviewed.  The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19940818 – 19941003		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19941004		Date of Discharge:  19970313

Length of Service (years, months, days):

	Active:    02  05  09  (Does not include lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  4 days
	Confinement:		  None

Age at Entry:  20

Years Contracted:  4 

Education Level:  13				AFQT:  48

Highest Rate:  AN

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):  National Defense Service Medal, Meritorious Unit Commendation, Armed Forces Expeditionary Medal, Sea Service Deployment Ribbon.

* Not Available

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  MILPERSMAN, Article 3630605.

Chronological Listing of Significant Service Events: 

970131:	NJP for violation of UCMJ, Article 86:  Unauthorized Absence
Award:  Restriction and extra duty for 14 days, reduction to E-2 (suspended for 6 months).  No indication of appeal in the record.  [Extracted from Commanding Officer, Naval Technical Training Center, Meridian, ltr, dtd March 25, 1997].

970215:	Applicant to unauthorized absence at 0730 on 970215.

970219:	Applicant from unauthorized absence at 0700 on 970219 (4 days/surrendered).

970303:	NJP for violation of UCMJ, Article 86: Unauthorized absence
	Award:  Forfeiture of $500.00 pay per month for 1 month, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.  [Extracted from Commanding Officer, Naval Technical Training Center, Meridian, ltr, dtd March 25, 1997.]
	
970304:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of commission of a serious offense.

970304:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

970325:	Commanding Officer, Naval Technical Training Center, Meridian notified the Bureau of Naval Personnel (PERS-83) that the Applicant will be discharged with a general (under honorable conditions) by reason of misconduct due to commission of serious offenses as evidenced by all incidents in current enlistments.  Commanding Officer’s comments:  “Enclosure (1) through (4) are forwarded for information.  At mast on 31 January and 3 March 1997, Seaman Apprentice M_ (Applicant) plead guilty and was found guilty of violation of violation of Articles 86X2.  Seaman Apprentice M_ (Applicant) failed to conform to military standards of trustworthiness and reliability.  His total disregard for rules and regulations clearly indicates that he has no potential for continued naval service.  Based on the foregoing and in accordance with reference (a), Seaman Apprentice M_ (Applicant) was separated from the naval service with a General (Under Honorable Conditions) discharge on 13 March 1997.”

Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19970313 by reason of misconduct due to commission of a serious offense (A) with a service characterization of general (under honorable conditions).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).  The Board presumed regularity in the conduct of governmental affairs (D).

The Applicant contends that his “discharge was improper because it was based on two family incidents”.  While he may feel that his family situation was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  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.  Relief denied.

In addition, the Applicant contends that his discharge would have been “handled better” if the incidents of misconduct had occurred at a permanent duty station and that he was not properly briefed regarding his assigned RE-4 code.  The separation process was in strict compliance with the Naval Military Personnel Manual.  The Applicant was properly notified of the CO’s intended recommendation for the Applicant’s administrative discharge by reason of commission of a serious offense with a character of service of general (under honorable conditions).  The Applicant acknowledged the notification, was advised of his rights, and having elected not to consult with counsel, elected to waive all rights.  The Commanding Officer, Naval Technical Training Center, Meridian, executing his discharge authority, pursuant to MILPERSMAN  1910-704, directed that the Applicant be administratively separated by reason of commission of a serious offense with a characterization of general (under honorable conditions).  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable.  Relief denied.

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 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 2 nonjudicial punishment proceedings for violations of Articles 86 of the UCMJ.  The violation of a UCMJ Article is considered a serious offense if a punitive discharge is an authorized sentence under the UCMJ for that specific Article.  Commission of a serious offense does not require adjudication by nonjudicial, judicial proceedings or civilian conviction; however, the offense must be substantiated by a preponderance of evidence. The government enjoys a presumption of regularity in the conduct of its affairs and the Board presumed that the Applicant violated a UCMJ Article that 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 and falls far short of that required 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 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 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, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any post-service 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 additional evidence related to this 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 14, effective 
03 Oct 96 until 971212, Article 3630605, SEPARATION OF ENLISTED PERSONNEL 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 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.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.

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