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

FOR OFFICIAL USE ONLY

ex-BMSA, USN
Docket No. ND06-00217

Applicant’s Request

The application for discharge review was received on 20051116.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and the Narrative Reason for Separation be changed.  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 20060926.  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: 

“Because I served Under Honorable conditions during my four years eight months in the Navy, and I feel as though I deserve a second chance to better my career in the military.”

Applicant’s Remarks:  Taken from the DD Form 293 to the Board:

“Because I feel as though as I didn’t have a fair chance to better my career in the military and the people who don’t want to be in the military they keep them In and the One’s who want to be in they kick them out.”

Documentation

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

Applicant’s DD Form 214  (Member 4)
Applicant’s DD Form 214  (Member 1)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19991230 - 20000724	COG
	Active:    USN	20000725 – 20040518	HON

Period of Service Under Review:

Date of Enlistment:  20040519		Date of Discharge:  20050506

Length of Service (years, months, days):

	Active:    00  11  18  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  19 days
	Confinement:		   None

Age at Entry:  21

Years Contracted:  4 

Education Level:  12				AFQT:  34

Highest Rate:  BM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  1.5 (4) 		Behavior:  1.75 (4) 		OTA:  1.85 (4)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal, Sea Service Deployment Ribbon (2), Navy Unit Commendation, Meritorious Unit Commendation, Global War On Terrorism Expeditionary Medal, Global War On Terrorism Service Medal, Navy “E” Ribbon (2) 

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: 

040519:	Reenlisted this date for a term of 4 years.

050216:	Applicant to unauthorized absence at 0600 on 050216.

050307:	Applicant from unauthorized absence at 1225 on 050307 (19 days/surrendered).

050317:	NJP for Charge I:  Violation of UCMJ, Article 86:  Unauthorized absence.
	Specification:  In that Boatswain’s Mate Third Class T_ M. R_ (Applicant), U.S. Navy, USS BATAAN, on active duty, did, on or about 16 February 2005, without authority, absent himself from his unit, to wit:  USS BATAAN, located at Norfolk, Virginia, and did remain so absent until on or about 7 March 2005.
Charge II:  Violation of UCMJ, Article 87:  Missing movement.
Specification:  In that Boatswain’s Mate Third Class T_ M. R_ (Applicant), U.S. Navy, USS BATAAN, on active duty, did, at Norfolk, Virginia, on or about 22 February 2005, through design, miss movement of the USS BATAAN with which he was required in the course of duty to move.
Additional Charge:  Violation of UCMJ, Article 86:
	Specification:  In that Boatswain’s Mate Third Class T_ M. R_ (Applicant), U.S. Navy, USS BATAAN, on active duty, did, on or about 16 March 2005, without authority, absent himself from his unit, to wit:  USS BATAAN, located at Norfolk, Virginia, and did remain so absent until on or about 17 March 2005.
Award:  Forfeiture of $870.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.

050325:	Retention Warning:  Advised of deficiency (NJP on 17 March 2005 for violation of the UCMJ, Article 86:  absence without leave and Article 87:  missing movement.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

050413:	NJP for violation of UCMJ, Article 92:  Failure to obey order or regulation.
Specification:  In that Boatswain’s Mate Seaman T_ M. R_ (Applicant), U.S. Navy, USS BATAAN, on active duty, having knowledge of a lawful order issued by Commanding Officer, USS BARAAN, to wit:  LHD5INST 5800.3 dated 18 February 2003, an order which it was his duty to obey, did, on board USS BATAAN, at sea, on or about 5 April 2005, fail to obey the same by wrongfully failing to report to restricted man’s muster for the third time.
Award:  Forfeiture of $729.00 pay per month for 2 months, restriction and extra duty for 35 days, reduction to E-2.  No indication of appeal in the record.

050423:	Applicant found medically qualified for separation.

050506:	DD Form 214: Applicant discharged general (under honorable conditions) by reason of misconduct due to commission of a serious offense, separation authority; MILPERSMAN 1910-142.

Service Record did not contain the Administrative Discharge package.  

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050506 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 available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  The Board presumed regularity in the conduct of governmental affairs (E).

The Applicant requested an upgrade of his discharge to honorable and a change to the narrative reason.  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 a retention warning and two nonjudicial punishment proceedings for violations of Articles 86, 87, and 92 of the UCMJ.  Violations of Article 87 (missing movement) and Article 92 (violation of an other lawful order) are considered serious offenses for which a punitive discharge is warranted at courts martial.  The summary of service clearly documents misconduct that met the criteria for discharge and that misconduct due to commission of a serious offense was the reason the Applicant was discharged.  No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable.  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.  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.  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 11, effective 
26 April 2005 until Present, Article 1910-142, 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 87 (missing movement) and Article 92 (violation of an other lawful order).

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.

E.  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