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NAVY | DRB | 2001_Navy | ND01-00809
Original file (ND01-00809.rtf) Auto-classification: Denied


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

ex-AEAA, USN
Docket No. ND01-00809

Applicant’s Request
The application for discharge review, received 010529, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant did not list any 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. I, A____ J K___ III, feel that my reenlistment code of four was unjust for the type of separation I was given and wish for a Review Board to consider and to investigate my service record. And hopefully change the status of my discharge to "Honorable" and my reenlistment code to one.

 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)     960427 - 960527  COG

 Period of Service Under Review :
Date of Enlistment: 960528               Date of Discharge: 000913

 Length of Service (years, months, days):

         Active: 04 03 16
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4 (12 months extension)

 Education Level: 10                        AFQT: 66

 Highest Rate: AE3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.66 (3)    Behavior: 2.86 (3)                OTA: 2.55 (5.0 Evals)

 Military Decorations: None

 Unit/Campaign/Service Awards: NAVY"E"RIBBON

 Days of Unauthorized Absence: None

 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 :

971028:  Retention Warning: Advised of deficiency Violation of UCMJ, Article 92 (Failure to obey a lawful order), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

980612:  NJP for violation of UCMJ, Article 86: Failure to go to appointed place of duty.
         Award: Restriction and extra duty for 45 days. No indication of appeal in the record.

990903:  NJP for violation of UCMJ, Article 86: Without authority, absence himself from his appointed place of duty, to wit: EMI muster 0730-0740, 990809.
         Award: Restriction for 30 days, and an oral admonition. No indication of appeal in the record.

990903:  Retention Warning: Advised of deficiency (CO's non judicial punishment on 990903 for being absent without leave), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

000801:  NJP for violation of UCMJ, Article 86: Did on or about 0900, 000717, Without authority, absent himself from his place of duty at which he was required to be, to wit: Tool Room at HC-5 aboard Anderson Air Force Base, Yigo, Guam, and did remain so absent until on or about 1410, 000717.
         Award: Forfeiture of $563.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.

000803:  Applicant notified of intended recommendation for discharge general under honorable conditions by reason of misconduct due to a pattern of misconduct.
000803:          Applicant advised of his rights and having elected to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to submit a written statement for consideration by the Separation Authority and to obtain copies of the documents used to support the basis for the separation

000828:  Commanding officer recommended discharge general under honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 000913 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 issue requested a change in the re enlistment code and an upgrade in the discharge to Honorable. T he NDRB has no authority to change reenlistment codes or make recommendations to permit reentry into the naval service or any other branch of the Armed Forces. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy. 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.

Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the applicant’s enlistment. Additionally, 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 the service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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. Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge. Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for clemency, based on post-service conduct. The applicant did not provide any of these documents. He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge. The applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Legal representation at a personal appearance hearing is highly recommended but not required. Relief is denied.



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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