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NAVY | DRB | 2003_Navy | ND03-01342
Original file (ND03-01342.rtf) Auto-classification: Denied


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


ex-CMCA, USN
Docket No. ND03-01342

Applicant’s Request
The application for discharge review was received on 20030807. The Applicant requests the 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 list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040526. 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)/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. “CAREER QUALIFICATIONS REQUIRE HONORABLE DISCHARGE POSSIBLE REENLISTMENT (ACTIVE OR RESERVE ORPPURTUNITY) EDUCATION BENEFITS (GI. BILL) OTHER BENEFITS, SUPPORT AND ENTITELMENTS”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214 (Member 1)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     990126 - 990411  COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 990412               Date of Discharge: 021223

 Length of Service (years, months, days):
         Active: 03 08 11
          Inactive: None
Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 41
Highest Rate: CMCN

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 2.60 (5)    Behavior: 2.40 (5)                OTA: 2.80

 Military Decorations: None
Unit/Campaign/Service Awards: NDSM, NREM, SSDR

 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 :

000616:  NJP for violation of UCMJ, Article 91: Disrespect to a superior petty officer.
         Award: Forfeiture of $400 per month for 2 months, ($400.00 for 1 month suspended 6 months) restriction and extra duty for 35 days (10 days suspended 6 months).
                  
000616:  Retention Warning: Advised of deficiency (Disrespect toward a superior petty officer on 000616 for violation of UCMJ, Article 91) and notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

000826:  Vacate suspended forfeiture restriction, and extra duties awarded at CO’s NJP dated 000616 due to continued misconduct.
         
000914:  NJP for violation of UCMJ, Article 86: Going from place of duty without authority.
Awarded: Reduction to CMCR, correctional custody for 30 days.
001110:  NJP for violation of UCMJ, Article 86 (3 Specs): UA from place of duty, to wit: Battalion morning quarters on 001015, 001020, and 001028.
         Award: Forfeiture of $400 per month for 2 months ($400.00 per month for 1 month suspended 6 months); restriction and extra duty for 45 days, (15 days rest/extra duties suspended 6 months).
021213:  NJP for violation of UCMJ, Article 86: Fail to go to his appointed place of duty on 021205 and 021105; violation of UCMJ Article 91: Disrespectful in language toward a chief petty officer on or about 021024; violation of UCMJ Article 92: Failure to obey a lawful order on or about 021022, 021024, and 021105; violation of UCMJ, Article 134: Drunk and disorderly conduct on or about 021130.
 Award: Forfeiture of $619.00 per month for 2 months, restriction and extra duty for 45 days, reduction to CMCA. No indication of appeal in the record.
021216:  Applicant advised of rights and having elected not to consult with counsel 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

021216:  Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of misconduct due to a pattern of misconduct and commission of a serious offense.
021223:  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 20021223 with a 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 discharge characterization accurately reflects his service to his country. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident during the Applicant’s enlistment. A characterization of service of general (under honorable conditions) is warranted when the service member’s conduct constitutes a departure from that expected of a Sailor. The Applicant’s service record is marred by award of nonjudicial punishment (NJP) on four separate occasions thus substantiating the misconduct . 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. Relief denied.
The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board (NDRB). There is no requirement or law that grants recharacterization solely on the issue of obtaining Veteran’s benefits and this issue does not serve to provide foundation upon which the Board can grant relief.

The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in the issue. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. 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.

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), re-issued October 2002, effective 22 Aug 2002 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 “ 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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