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NAVY | DRB | 2003_Navy | ND03-00974
Original file (ND03-00974.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND03-00974

Applicant’s Request
The application for discharge review was received on 20030512. The Applicant requests the characterization of service received at the time of discharge be changed to entry level separation or uncharacterized. The Applicant requests 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 20040408. 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/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

1. “Under stressful conditions I was given documents to sign, such as waiver of counsel, and I signed them knowing my state of mental distress I should have had counsel from the start. My discharge was a slow process that led to more mental distress. At the time I was immature and did not know how to handle this adult situation. I was given a RE-4 that is keeping me from re-entering the service as I now wish to do. I am now mature and I want to fulfill my obligation to my country in the USAF. Please change my status so that this may be possible.”
Documentation
In addition to the service record, ONLY PARTIAL DISCHARGE PACKAGE AVAILABLE, the following additional documentation, submitted by the Applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     980130 - 980210  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 980211               Date of Discharge: 990727

 Length of Service (years, months, days):

         Active: 01 03 08
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4 (24 months extension)

 Education Level: 12                        AFQT: Not Legible?

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (1)    Behavior: 1.00 (1)                OTA: 2.00

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 70

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

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

 Chronological Listing of Significant Service Events :

980717:  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.

980717:  NJP for violation of UCMJ, Article 92: On or about 980705, fail to obey a lawful order to complete 3 hours of after-hours study time.
         Award: Oral admonition, forfeiture of $100.00 pay per month for 1 month, correctional custody for 30 days, reduction to E-2. No indication of appeal in the record.

990315:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86: (3 Specifications),.
         Specification 1: UA from 990104 to 990205 (32 days/R), Specification 2: UA from 990206 to 990217 (11days/R), Specification 3: UA from 990224 to 990225 (1day). Charge II: violation of the UCMJ, Article 87: (2 Specifications), Specification 1: Missing ship’s movement on 990122, Specification 2: Missing ship movement on 990128.
         Finding: to Charge I and specifications 1, 2 and 3 thereunder, guilty. To Charge II and specifications 1 and 2 thereunder, guilty.
         Sentence: Confinement for 30 days, forfeiture of $638.00 pay per month for 1 month.
         CA action 990311: Sentence approved and ordered executed.

990619:  NJP for violation of UCMJ, Article 86: UA from on or about 990406 to 990502 (26days/S), violation of UCMJ, Article 87: Missing movement on or about 990407.
Award: Forfeiture of $479.00 pay per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
990630:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, misconduct due to commission of serious offense, and by reason of convenience of the government due to personality disorder.

990709:  Commander, Carrier Group SIX authorized the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

ONLY PARTIAL DISCHARGE PACKAGE AVAILABLE

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19990727 under other than honorable conditions for misconduct due to a pattern of misconduct (A). In the absence of a complete discharge package, the Board presumed regularity in the conduct of governmental affairs (B) and, after a thorough review of the records, supporting documents, facts, and circumstances unique to this case, that the discharge was proper and equitable (C and D).

 Regarding the Applicant’s request to change the characterization of service to uncharacterized or entry level separation, by regulation, only members discharged within the first 180 days of their first enlistment can be given this kind of discharge. Since the Applicant served in excess of 1 year, he cannot be given an uncharacterized or entry level separation. Relief not warranted.
Issue 1: 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. While he may feel that his youth and immaturity were contributing factors, they do not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service. His service record is marred by award of nonjudicial punishment (NJP) on two separate occasions and a summary court-martial thus substantiating the misconduct . Additionally, concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reentry into the military service. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter. Relief, is therefore, 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 other evidence related to his discharge at that time. 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. 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 “ afls14.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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