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

FOR OFFICIAL USE ONLY

 ex-HA, USN
Docket No. ND06-00941

Applicant’s Request

The application for discharge review was received on 20060705.  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.  Subsequent to the application, the applicant obtained representation from a private representative.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20070419.  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 commission of a serious offense.

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PART I - ISSUES AND DOCUMENTATION

Decisional Issues
Equity: Punishment too harsh

Documentation

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

Applicant’s DD Form 214 (Member 4)
Character Reference ltr from Rev. G_ T, Pastor, dated April 25, 2006
Character Reference ltr from H_ P_, Vice President, Acacia Capital Corporation, dated May 24, 2006
Statement from Applicant, undated
Applicant’s unofficial transcript, dated June 5, 2006 (2 pages)
Character Reference ltr from Sergeant A_ M. N_, dated January 30, 2007
Cover letter from Applicant, undated
Applicant’s election of a private representation, dated March 2, 2007

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19980325 - 19980726	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19980727		Date of Discharge:  20010413

Length of Service (years, months, days):

	Active:    02  08  18
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  20

Years Contracted:  4 (12 month extension)

Education Level:  12				AFQT:  68

Highest Rate:  HN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0 (1)			Behavior:  1.0 (1)		OTA:  2.17

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  None

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: 

001012:	NJP for violation of UCMJ, Article 92: Failure to obey order or regulation.
Violation of UCMJ, Article 107: False official statements.
Violation of UCMJ, Article 134: Obstructing justice.
	Award:  Forfeiture of $617.00 per month for 1 month, restriction and extra duty for 45 days.  Forfeiture suspended for 6 months.  No indication of appeal in the record.

001012:	Retention Warning:  Advised of deficiency (Commanding Officer’s nonjudicial punishment for violations of Uniform Code of Military Justice, Articles 92, 107, and 134.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.  [Extracted from Commanding Officer’s letter dated 010409.]

010205:	Forfeiture of pay awarded at NJP on 001012 vacated.

010205:	NJP for violation of UCMJ, Article 134: Breaking restriction.
	Award:  Forfeiture of $653.55 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  Reduction suspended for 6 months.  No indication of appeal in the record.

010321:	Reduction in pay grade awarded at NJP on 010205 vacated.

010321:	NJP for violation of UCMJ, Article 92: Failure to obey other lawful written order.
	Award:  Forfeiture of $617.00 per month for 1 month, restriction and extra duty for 45 days, reduction to E-1.  Reduction suspended.  No indication of appeal in the record.

010405:	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 and misconduct - commission of a serious offense.

010405:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

010409:	Commanding Officer directed Applicant’s discharge with a general (under honorable conditions) by reason of misconduct - commission of a serious offense and misconduct - pattern of misconduct.

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 20010413 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 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 requests an upgrade of his discharge and argues that his discharge is too harsh.  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 warnings, three nonjudicial punishment proceedings for violations of Articles 92 (violation of an order), 107 (false official statements), and 134 (obstructing justice and breaking restriction) of the UCMJ.  Violation of UCMJ Articles 92, 107, and 134 (obstructing justice) are considered serious offenses for which a punitive discharge is authorized at courts 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 stated that he would like to return to the military.  For the edification of the Applicant, the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces.  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.  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 31, dated 20 Feb 01, effective 25 Jan 01 until 21 Aug 02, 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), Article 107 (false official statement), Article 134 (obstructing justice).

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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