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NAVY | DRB | 2001_Navy | ND01-00773
Original file (ND01-00773.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND01-00773

Applicant’s Request
The application for discharge review, received 010515, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant listed American Legion as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 011214. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain: GENERAL UNDER HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. Wish to upgrade DD-214 from General Under Honorable Condition to Honorable. Wish to upgrade DD-214 Reentry Code from RE-4 to be able to reenlist. I Feel the type of discharge and RE-Code given me was unfair. I served 18 months with only two incidents in which I felt should have been a misunderstanding. My DD-214 states a pattern of misconduct. I missed two ship movements because I was in fear of my families safety. There was an investigation going on which involved a stalking and burglary. I was ordered to leave my family and deploy. I felt I could not and did not have adequate time to make arrangements for my family.

2. (American Legion's Equity Issue) This former member further requests that the Board include provision of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     970409 - 970505  COG

 Period of Service Under Review :
Date of Enlistment: 970506               Date of Discharge: 981015

 Length of Service (years, months, days):

         Active: 01 05 10
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

Education Level: 11                        AFQT: 69

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA                  Behavior: NMA             OTA: NMA

 Military Decorations: None

 Unit/Campaign/Service Awards: Navy Pistol Expert Medal, Navy Rifle Expert Medal

 Days of Unauthorized Absence: 1

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

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

 Chronological Listing of Significant Service Events :

        
980701:  NJP for violation of UCMJ, Article 86: Absent without leave, violation of UCMJ Article 87: Missing movement, violation of UCMJ Article 92: Failure to obey order or regulation, violation of UCMJ, Article 107: False official statements.
Award: Forfeiture of $311.00 per month for 2 months, extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
980701:  Retention Warning: Advised of deficiency (Commanding Officer NJP for violation of the UCMJ, Articles 86: Absent without leave, 87: Missing movement, 92: Failure to obey order or regulation, 107: False official statement), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

980827:  NJP for violation of UCMJ, Article 86 (2 Specifications), Spec 1: Without authority absent himself from his place of duty on or about 0700, 980808 to wit: Failed to muster for duty, and did remain so until 0700, 980809, Spec 2: Without authority absent himself from his place of duty on or about 0730, 980803 to wit: Failed to muster for morning quarters, and did remain so absent until 1021, 980813; violation of UCMJ Article 87: Missing ship's movement on or about 1700, 980803 through design.
         Award: Restriction and extra duty for 10 days (suspended for 3 months). No indication of appeal in the record.
980918:  Applicant notified of intended recommendation for discharge general under honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.
980918:          Applicant advised of his rights and having elected not to consult with certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation

981106:  Commanding officer recommended discharge general under honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 981015 general under honorable conditions for misconduct due to a pattern of misconduct (A). The Board presumed regularity in the conduct of governmental affairs (B). 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’s first issue states: “Wish to upgrade DD-214 from General Under Honorable Condition to Honorable. Wish to upgrade DD-214 Reentry Code from RE-4 to be able to reenlist. I Feel the type of discharge and RE-Code given me was unfair. I served 18 months with only two incidents in which I felt should have been a misunderstanding. My DD-214 states a pattern of misconduct. I missed two ship movements because I was in fear of my families safety. There was an investigation going on which involved a stalking and burglary. I was ordered to leave my family and deploy. I felt I could not and did not have adequate time to make arrangements for my family.”

There is no evidence t show that the applicant attempted to use his chain of command to assist him with his personal problems. Additionally, there is evidence that shows he willfully disobeyed a direct order and missed ship’s movement. The applicant provided no documentation to support his issue. The NDRB found the General discharge accurately characterizes the applicant’s service. Relief is denied.

Regarding a change in RE Code , the NDRB has no authority to change reenlistment codes or make recommendations to permit reentry into the naval service or any other of the Armed Forces. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy or Marine Corps. Reenlistment policy of the naval service is promulgated by the Commander, Navy Personnel Command, Pers-814, 5720 Integrity Drive, Millington, TN 38055. 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. Relief, is therefore, denied.

The applicant’s second issue states: “(American Legion's Equity Issue) This former member further requests that the Board include provision of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.” The NDRB is authorized to consider post-service factors in the re characterization of a discharge. 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 the civilian life subsequent to leaving the service. Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, may be considered by the NDRB. The applicant failed to provide any documentary evidence to warrant an upgrade to his discharge. Relief is not warranted.

The applicant remains eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at personal appearance hearing is recommended .

Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 1997 until Present, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

B. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 “ afls10.jag.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:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023      


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