Author: CAP
Last saved by: joyce.meeks
Company: NCPB

Docket No. ND06-00282

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

FOR OFFICIAL USE ONLY

 ex-SA, USNR
Docket No. ND06-00282

Applicant’s Request

The application for discharge review was received on 20051122.  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 20061025.  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

Applicant’s issues, as stated on the application and/or attached document/letter:

“The discharge was inequitable because it was based on three separate, isolated incidences during my service that were neither intentional, willful, or excessively injurious to the Navy, and for which I was punished appropriately at the time. Te first incident occurred on 07/25/1998.  I got separated from my “buddy” while on shore leave, and became lost which resulted - in my returning late to the ship.  I received a Captain’s Mast for Absence Without Leave; Lost in a Foreign Port, and I was restricted to the ship for 45 days with extra duties. The second occurrence is fairly self explanatory, and indefensible.  On 05/07/1999, I was late reporting to a Command Physical Readiness Test.  I received extra duties and restriction to the ship for a period of 30 days, and a reduction in pay grade that was suspended for 6 months.
The third incident occurred on 03/31/2000.  I requested the opportunity to attend my maternal grandmother’s funeral.  I filled out the necessary paperwork which was approved by the officer on duty.  Unfortunately, the paperwork was misplaced and when I returned to the ship, my inability to provide a copy of the documents to the Captain resulted in second count of Absence Without Leave.  I again received a Captain’s Mast, was restricted to ship for 30 days, and was demoted form Seaman to Seaman Apprentice.  I understand the military has strict guidelines to which it’s members must adhere and the failure to do so must have strict consequences.  I am not denying my errors, however neither instance was done out of deliberate disobedience or in an attempt to cause harm to the military.  In addition, I was punished adequately for each offense, Being discharged as General Under Honorable for Pattern of Misconduct is an added penalty that is more severe than the offenses on which it was based.  While it is no excuse, I also feel that there were several other mitigating factors that led to my lack of success in the Navy.  During this time, I was trying to get my citizenship, my parents were going through a nasty divorce which I didn’t find out about until it was nearly final, my grandmother passed away, my little brother was in serious trouble, and I was struggling within my career in the Navy.  As an adult, I appreciate that these are things that should be “left at home” and not have interfered with my performance as a Seaman, however as a 22 year old, that lesson was not as clear.  In addition, I believe that upon reviewing my record, you will see that my performance under my first Commanding Officers (CDR N.P. C_ Jr., LCDR K.M. S_, and LCDR R.L.T_), was much stronger and declined with the assignment of my second Commanding Officer, A.E. E_.  CDR C_ was an amazing man and a true leader.  In areas that I struggled, he encouraged me and helped me to improve.  Captain E_ and I, on the other hand, got off on the wrong foot from the beginning, At one point I was told that he would do everything possible to get me off his ship.  Again, as an adult I recognize that personal conflicts are no excuse, but at the time of my enlistment, I lacked the maturity to handle the conflict appropriately.  You will notice in my file that at the time of my discharge, I waived my rights to seek counsel or contest the manner of discharge.  At the time of my discharge, I was so devastated by the impending ruin of my military career that I believed contesting it would only prolong the inevitable.  I have regretted that decision every day since, and at present I am willing to do whatever is necessary to prove my commitment to the United States Military, and prove my abilities and determination to serve as a member of it’s ranks.  I am a Naturalized Citizen of the United States and it has always been my dream to serve in the United States Military.  Despite my past oversights, it is still my greatest wish to serve in the military, and prove myself worthy of the honor.  In addition, when applying for jobs which require a review of my DD-214, Certificate of Release or Discharge, I have been turned down time and again because of my discharge.  It goes without saying that while my mistakes were grievous and required admonishment, they were in fact mistakes, something which anyone is capable of making.  It is my belief that I was punished appropriately at the time of my offenses and the discharge I received as well as the resulting complications it provides me in my current life, are in excess of the errors committed by myself.
I sincerely hope you will consider changing my discharge from Honorable Under General Conditions to Honorable and removing my RE-4 non-re-enlistment restriction that I may pursue a future in the United States Military Reserves.”

Documentation

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

Applicant’s DD Form 214 (Member 4 and Service 2)
Three hundred and five pages, including duplicates, from Applicant’s service and medical records
United States Navy, Recruiting Command Certificate of acceptance for enlistment, dtd February 15, 1996
Sailor/Marine American Council on Education Registry Transcript, dtd November 13, 2000 (4 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19960215 - 19960916	ELS
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19960917		Date of Discharge:  20000502

Length of Service (years, months, days):

	Active:    02  10  14  (Does not exclude lost time)
	Inactive:  00  09  01

Time Lost During This Period (days):

	Unauthorized absence:  3
	Confinement:		  None

Age at Entry:  19

Years Contracted:  8

Education Level:  11				AFQT:  35

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.8 (4)			Behavior:  3.0 (4)		OTA:  2.79

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Meritorious Unit Commendation/Sea Service Deployment Ribbon/Armed Forces Service Medal/Armed Forces Expeditionary Medal/Battle “E”

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

GENERAL (UNDER HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority:  MILPERSMAN, Article 1910-140 (formerly 3630600).

Chronological Listing of Significant Service Events: 

960917:	Pre-service waiver for previous DEP enlistment granted.

970619:	Commenced active duty for a period of 3 years.

980805:	NJP for violations of the UCMJ.
Charge 1: violation of UCMJ, Article 86:
	Specification: In that SN D_ V_(Applicant), U.S. Navy, USS ARLEIGH BURKE (DDG 51), on active duty, did on board USS ARLEIGH BURKE, on or about 25 July 1998, without authority, absent himself from his place of duty at which he was required to be, to wit: Fleet Landing, located at Varna Bulgaria, and did remain so absent until he returned on or about 0130 25 July 1998, a period of one and one half hours.
	Charge 2: violation of UCMJ, Article 92:
	Specification: In that SN D_ V_, U.S. Navy, USS ARLEIGH BURKE (DDG 51), on active duty, having knowledge of a lawful order issued by N_ P. C_, Jr., Commanding Officer, USS ARLEIGH BURKE to wit: ARLEIGHBURKENOTE 1050, Dated 22 June 1998, an order which it was his duty to obey, did, on board USS ARLEIGH BURKE, on or about 25 July 1998, fail to obey the same by wrongfully being on liberty without a buddy.
	Charge 3: violation of UCMJ, Article 92:
Specification: In that SN D_ V_, U.S. Navy, USS ARLEIGH BURKE (DDG 51), on active duty, having knowledge of a lawful order issued by OS2 T_ C_ and GSM2 W_ B_ to wit: an order which it was his duty to obey, at Varna Bulgaria, on or about 25 July 1998, fail to obey the same by wrongfully leaving without buddy.
	Award:  Restriction and extra duty for 45 days.  Punishment suspended for 6 months.  No indication of appeal in the record.

990616:	NJP for violation of UCMJ, Article 86:  Failure to go to appointed place of duty.
	Specification: In that SN V_(Applicant), D_, on active duty, did on board USS ARLEIGH BURKE, on or about 0700, 07 May 1999, without authority, failed to go at the time perscribed to his appointed place of duty, to wit: command physical readiness test.
	Award:  Restriction and extra duty for 30 days, reduction to E-2.  Reduction suspended for 6 months.  No indication of appeal in the record.

990623:	Retention Warning:  Advised of deficiency (Article 86: Failure to go to appointed place of duty on or about 7 May 1999.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

000331:	Applicant to unauthorized absence at 0630 on 000331.

000403:	Applicant from unauthorized absence at 0110 on 000403 (3 days).

000413:	NJP for violation of UCMJ, Article 86: Unauthorized absence.
	Specification: In that SN V_(Applicant), D_, on active duty, did, on or about 0630, 31 MAR 2000, without authority, absent himself from his place of duty at which he was required to be, to wit: USS ARLEIGH BURKE, located at Pier 10, Norfolk Naval Station, and did remain so absent until on or about 0110, 03 APR 2000, a period of approximately 67 hours.
	Award:  Restriction and extra duty for 30 days, reduction to E-2.  Process for ADSEP.  No indication of appeal in the record.

000419:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct - pattern of misconduct.

000419:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

000501:	Applicant found medically qualified for separation.

000502:	Commanding Officer, USS ARLEIGH BURKE (DDG 51), reported discharging the Applicant with a general (under honorable conditions) characterization of service by reason of misconduct - pattern of misconduct.  Commanding Officer’s comments:  “I separated SA V_(Applicant) from the naval service by reason of misconduct- pattern of misconduct.  He received a General (under Honorable conditions) characterization of discharge.”

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000502 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 contends that his discharge is inequitable because it is based on “three separate, isolated incidences” that were “neither intentional, willful, or excessively injurious to the Navy.”  The Applicant’s issue is without merit.  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 or 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 three nonjudicial punishment proceedings for violations of Articles 86 and 92 of the UCMJ.  The Applicant’s violations of Article 92 of the UCMJ are considered serious offenses 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 because he was punished for his infractions of the UCMJ at nonjudicial punishment, he should not have been administratively separated.  The Applicant also contends that the character of service he received is “an added penalty that is more severe than the offenses which it was based.”  Subsequent to the Applicant’s second nonjudicial punishment proceedings, the Applicant received a retention warning on 19990623 which specifically informed the Applicant that he was being retained, but that future infractions of the UCMJ could result in his administrative separation.  The Additionally, the Applicant is advised that administrative separations are not considered punitive in nature.  General (under honorable conditions) accurately describes the Applicant’s character of service.  Relief denied.

While the Applicant admits the infraction which lead to his second NJP was “indefensible,” the Applicant implies that he should not have been punished or held responsible for the actions which were adjudicated at his other nonjudicial punishment proceedings.  The Applicant also contends that there were mitigating circumstances for his misconduct.  The NDRB recognizes that serving in the U.S. Navy is very challenging.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  It must be noted that most Sailors serve honorably and well and therefore earn honorable discharges.  In fairness to those members, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  The record clearly reflects the Applicant’s 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 following is included in response to the Applicant’s desire to have his character of service and RE-code changed to facilitate reenlistment.   The Board has no authority to upgrade a discharge for the sole purpose of enhancing enlistment, employment or educational opportunities.  Additionally, 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), Change 18, effective
12 Dec 1997 until 21 Aug 2002, Article 1910-140 (formerly 3630600), SEPARATION 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, failure to obey 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.

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