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

FOR OFFICIAL USE ONLY

 ex-AKAA, USN
Docket No. ND06-00280

Applicant’s Request

The application for discharge review was received on 20051206.  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 20061019.  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 General (Under Honorable Conditions) by reason of misconduct due to a pattern of misconduct.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

In Block 8, DD Form 293, the Applicant indicated “see attached” as issues for the Board’s consideration.  There were no letters to the Board contained in the attachments.  Therefore, the Board considered the issues that the Applicant addressed to his U.S. Senator.  Applicant’s issues, as stated on the attached letter:

“To: The Office of Senator J_ M_

From: R_ J S_ (Applicant) [social security number deleted]

Hello, 

Please review my submission to upgrade my military discharge from general under honorable to an honorable discharge and to review my reentry code to a code where it may possible for me to be eligible to be of service to the united states naval reserves
My requests come to state that when I joined the navy I had goals in mind to continue college with the use of the Montgomery GI Bill.  I paid out $1200.00 at $100.00 per month as a payment towards the GI Bill fund while on active duty.
I am hoping to continue with my education and or vacation, trade, technical training with the use of GI Bill funds
But I first need approval from the senators office for a discharge upgrade
in review I had a couple of days of unauthorized absence or failing to obey orders but my contribution to the navy and my squadron far overweigh the isolated instances in my records, I have never seen what was written up regarding the instances so I have no way of defending myself, I know where I was wrong I made some bad choices and some of the mistakes may have been contributed to over indulgence of alcohol at time I was under peer pressure to drink with fellow sailors.
I loved serving in my country, I did an excellent job with the tasks at hand in my squadron. I was able to handle tremendous amounts of pressure and danger and was always there for my fellow sailors & officers and they were there for me.  I am so proud of the united states military and I would hope my country is proud of me this is why I am asking whomever is concerned for the upgrade so I can continue with my goals I would like to request in writing your decision for the upgrade & the change to my reentry code I am doing this request on my own and am not requesting representation (DAV ETC.)
I am a responsible citizen to Tucson, Arizona I help others.  I wanted my dad to write a letter on my behalf but he is too old and frail to write.
I take care of my mom and dad on a daily basis as they are elderly and housebound and look out after their needs
and if there are any questions or other items I need to accomplish in my request please contact me at: 
R_ J S_ (Applicant)
[address, phone numbers and email address deleted]
Sincerely, 
R_ J S_ (Applicant)
[signed]

NOTE:  WITH RESPECT TO THE SENATE OFFICES I KEPT THIS LETTER BRIEF WITH TIME CONSTRAINTS IN MIND

PLEASE EXPEDITE”

Documentation

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

Privacy Act Consent Form, undated
Letter from Applicant to Senator J_ M_, dated March 7, 2005 
Applicant’s DD Form 214
Certificate of Commendation for service from November 1994 through May 1995
Certificate of Commendation for service in March 1995
Letter of Appreciation, dtd March 10, 1994.
Photo

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19930120 - 19930301	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19930302		Date of Discharge:  19960112

Length of Service (years, months, days):

	Active:    02  10  10  (does not exclude lost time)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  1
	Confinement:		  None

Age at Entry:  30 

Years Contracted:  4 

Education Level:  11				AFQT:  45

Highest Rate:  AKAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.5 (3) 		Behavior:  3.1 (3) 		OTA:  3.40 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal, Southwest Asia Service Medal with 1 Bronze Star, Sea Service Deployment Ribbon

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

GENERAL (UNDER HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority:  MILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events: 

931124:	NJP for violation of UCMJ, Article 92:  Failure to obey order or regulation.
Award:  Forfeiture of $50.00 for 1 month.  No indication of appeal in the record.

940729:	Applicant to unauthorized absence at 1530 this date.

940731:	Applicant from unauthorized absence at 1400 this date.

940816:	NJP for violation of UCMJ, Article 86:  Absence without leave on or about 940729.  Violation of UCMJ, Article 92: Failure to obey order or regulation.  Award:  Reduction in rate to AA, suspended for six months, forfeiture of $100.00 for 2 months and 30 days extra duty.  No indication of appeal in the record.

950913:	Applicant to unauthorized absence at 0730 on 950913.

950913:	Applicant from unauthorized absence at 1914 on 950913.

951003:	Retention Warning:  Advised of deficiency (violation of the UCMJ Article 86 (unauthorized absence)), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

951003:	NJP for violation of UCMJ, Article 86:  Absence from unit.
	Award:  Reduction to E-2, suspended for six months, forfeiture of ½ pay per month for 2 months, suspended for six months, restriction and extra duty for 30 days.  No indication of appeal in the record.

951016:	Applicant’s partially suspended award from nonjudicial punishment proceedings on 951003 vacated this date due to continued misconduct. 

951016:	NJP for violation of UCMJ, Article 134:  Breaking restriction.
Award:  Restriction to NAS Lemoore, CA for 30 days.  No indication of appeal in the record.

undated:	Applicant notified of intended recommendation for discharge by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense as evidenced by all your nonjudicial punishment in your current enlistment.  Applicant informed character of service may be under other than honorable conditions.

951107:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

951121:	Commanding Officer, Strike Fighter Squadron 151, recommended a general (under honorable conditions) discharge by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.  Commanding Officer’s comments:  “Airman S_ (Applicant) has displayed the ability, on occasions, to be a sailor with unlimited potential; however, he has displayed unfavorable traits that overturn all of his accomplishments such as lack of attention to detail, consistent inability to arrive to work promptly, and uncertainty while performing his military duties.  This behavior is clearly unacceptable for continued Naval service, therefore I recommend he be separated from active duty with a characterization of service as General Under Honorable Conditions.”

951227:	BUPERS directed the Applicant's general (under honorable conditions) discharge by reason of misconduct pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19960112 by reason of misconduct due to a pattern of misconduct (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).  

The Applicant implies that his discharge is inequitable because he “had a couple of days of unauthorized absence or failing to obey orders.”  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 four nonjudicial punishment (NJP) proceedings for violations of Articles 86, 92 and 134 of the UCMJ.  The Applicant’s partially suspended award from NJP on 19951003 was vacated on 19951016 due to the Applicants continued misconduct.  The Applicant’s violation of Article 92 is considered the commission of a serious offense for which a punitive discharge is authorized if adjudged as part of the sentence upon conviction at special or general court-martial.   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.

The Applicant implies that his discharge is inequitable because of his indulgence in alcohol may have contributed to his misconduct.  While he may feel that his abuse of alcohol 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.

The Applicant implies that his discharge is inequitable because it does not allow him use of a Veterans Administration benefit.  The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment, employment or educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  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.  Relief is not warranted.

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 9, effective 
22 Jul 94 until 02 Oct 96), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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 92, willfully disobey order/regulation.

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