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

FOR OFFICIAL USE ONLY

ex-AEAR, USN
Docket No. ND06-00391

Applicant’s Request

The application for discharge review was received on 20060106.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions).  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 20061109.  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 Under Other Than 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: 

“Respectfully request upgrade of discharge in order to re-join Military.”

Documentation

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

Applicant’s DD Form 214 (Member 4)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20010212 - 20010225	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20010226		Date of Discharge:  20040629

Length of Service (years, months, days):

	Active:    03  04  04  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  19

Years Contracted:  4 (12-month extension)

Education Level:  12				AFQT:  75

Highest Rate:  AEAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0 (3) 		Behavior:  2.7 (3)			OTA:  2.89 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal

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

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

Chronological Listing of Significant Service Events: 

030826:	NJP for violation of UCMJ, Article 92: Failure to obey an order or regulation on 030331.
Award:  Forfeiture of $645.00 pay per month for 2 months (suspended for 6 months), restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

030826:	Retention Warning:  Advised of deficiencies in performance and conduct (Captain’s Mast was held on 030826, for violation of the UCMJ, Article 92 - failure to obey order or regulation).  Notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

040415:	NJP for violation of UCMJ, Article 92: Failure to obey an order or regulation.
Award:  Forfeiture of $596.00 pay per month for 2 months, restriction for 60 days, reduction to E-1.  No indication of appeal in the record.

040512:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct - commission of a serious offense as evidenced by CO’s NJP of 030826 and 040415; misconduct - pattern of misconduct as evidenced by CO’s NJP of 030826 and 040415.

040513:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

040517:	Commanding Officer, Fighter Squadron ONE ZERO ONE recommended to Commander, Naval Air Force, U.S. Atlantic Fleet via Commander, Fighter Wing, U.S. Atlantic Fleet that Applicant be discharged under other than honorable conditions by reason of misconduct - commission of a serious offense as evidenced by Commanding Officer’s Nonjudicial Punishment held on 030826 and 040415 and misconduct - pattern of misconduct as evidenced by Commanding Officer’s Nonjudicial Punishment held on 030826 and 040415.  Commanding Officer’s comments:  “AEAR S_ (Applicant) reported to VF-101 in November 2001 and was an average worker.  On May 29 2003 he attended Chief Petty Officer disciplinary review board for failing to pay his just debts.  Three months later it was discovered that he had gotten a tattoo of “FTN” on his forearm that he had kept covered up since January 2003.  He was taken to mast on 26 August 2003 for violating a general regulation and was told to have the tattoo covered up.  In March 2004, Information Systems discovered a government computer that had been used for looking at pornographic sites.  Upon investigation it was found that AEAR S_ had been looking at these sites during the night shift in which he worked.  He was taken to mast on 15 April 2004 for another violation of a general regulation.  The chain of command has exhausted all resources trying to assist AEAR S_ in becoming a productive member of the command and the Navy.  He has shown no desire to adhere to the rules regulations and has no potential for any further useful service.  I strongly recommend he be discharged from the Naval service with an Other Than Honorable discharge.”

040615:	GCMCA, COMNAVAIRLANT NORFOLK VA directed the Applicant's discharge under other than honorable conditions by reason of misconduct - commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040629 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of under other than 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.  An under other than 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 a retention warning and 2 nonjudicial punishment proceedings for violations of Article 92 of the UCMJ.  The NDRB advises the Applicant that certain serious offenses warrant separation from the Navy in order to maintain proper order and discipline. Violations of Article 92 are considered serious offenses and a punitive discharge is authorized if adjudged at a 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.

In regards to the Applicant’s stated desire to “re-join the Military,” the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces.  Therefore, the 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.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  

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, 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), 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 92, Failure to obey order or 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