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NAVY | DRB | 2004_Navy | ND04-00002
Original file (ND04-00002.rtf) Auto-classification: Denied


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

ex-SR, USNR
Docket No. ND04-00002

Applicant’s Request
The application for discharge review was received on 20030926. 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 20040628. 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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “Dear NDRB,

I am formally stating my issues, which are that I am requesting an honorable discharge. The reasons for my request in switching a other than honorable to an honorable are so I may re-enlist in the service.
I hope in your response you relize my immaturity level at that time, it’s now been seven years. So, now a man I relize how foolish I was at that time, so now seven years later I’m willing and ready to serve my country as a proud American.
Please consider at one time I was good enough to belong to such an elite proud organization and so I ask for a second chance to prove I am that man.

 Documentation
In addition to the service record, 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)     None
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment:     940124   Date of Discharge: 960326

 Length of Service (years, months, days):

         Active: 02 02 02
         Inactive: 00 00 10

 Age at Entry: 19                          Years Contracted: 8

 Education Level: 12                        AFQT: 45

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.60 (1)    Behavior: 3.40 (1)                OTA: 3.60

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SASM, SSDR, NUC, BEA

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

940125:  You are being retained in the Naval service, despite your defective enlistment and induction due to fraudulent entry into naval service as evidenced by your failure to disclose your pre-service civil involvement/drug abuse. This decision is based on the information you provided the Recruit Quality Assurance Interviewer and if it is found that additional information has not been disclosed, this waiver is void and you could be subject to other judicial or administrative proceedings. Faulty equipment, 12/93, Greenville, MI, dismissed. However, any further deficiencies in performance or conduct may result in processing for administrative separation.
950630:  Retention Warning from USS REID: Advised of deficiency (failure to pay just debts), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

951013:  Retention Warning from USS REID: Advised of deficiency (communication of a threat), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

951212:  Vacate of reduction in rate to SA suspended at Commander’s NJP of 951011 vacated this date due to continued misconduct.
951212:  NJP for violation of UCMJ, Article 128: Assault consummated by a battery on 951212.
Award: Restriction and extra duty for 30 days, reduction to SR. No indication of appeal in the record.
960107:  Retention Warning from USS REID: Advised of deficiency (assault consummated by a battery), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

960202:  NJP for violation of UCMJ, Article 81: Conspiracy to commit an assault, violation of UCMJ, Article 134: Soliciting another to commit an offense.
         Award: Forfeiture of $427.00 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.

960205:  Commanding Officer, USS RIED notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by Commanding Officer’s NJP.
960206:  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.
960206:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. Commanding Officer’s comments: Recommend SR C_ (Applicant) be discharged and the nature of the discharge be under than honorable conditions. The following paragraphs outline the basis for this recommendation. While working on the mess decks as a Food Service Attendant then SN C_ (Applicant) was given an order to “turn down his radio” by the Mess Decks Master-At-Arms, a Second Class Petty Officer. SN C_ (Applicant) refused and when the Master-At-Arms went to turn down the radio SN C_ (Applicant) threatened him. SN C_ (Applicant) was taken to Commanding Officer’s NJP and awarded reduction in rate to E-2 and 20 days restriction and extra duties. The reduction to E-2 was suspended for six months. Following this incident SN C_ (Applicant) was ordered to attend stress management classes, enclosure (6). On 951201, while working in a berthing compartment, SN C_ (Applicant) was order to turn down his radio by his immediate supervisor a BMSN. When SN C_ (Applicant) refused, the BMSN turned down the radio, SN C_ (Applicant) then proceeded to jump on the BMSN’s back and started choking him SN C_ (Applicant) had to be restrained by two other crewmembers. SN C_ (Applicant) was taken to NJP on 951201, his suspended reduction in rate was vacated, he was then reduced in rat to E-1 and awarded thirty days restriction and extra duties. On 960202 SR C_ (Applicant) was taken to Captain’s Mast after an incident where he and another crewmember assaulted a fellow sailor after an altercation outside a base nightclub. During this incident SR C_ (Applicant) solicited and planned the assault that was consummated by a battery. SR C_ (Applicant) was awarded forty-five days restriction and extra duty as well as forfeiture of $427.00 for two months. Reid has made every opportunity to assist SR C_ (Applicant). He has been given counseling, referred to the Family Service Center, and ordered to attended stress management classes. Throughout his entire time in the Navy SR C_ (Applicant) has repeatedly shown a blatant disregard for authority and Navy regulations. SR C_ ‘s (Applicant) actions have no place in the Navy and clearly warrant an other than honorable discharge.

960318:  BUPERS directed the Applicant's discharge under other than 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 19960326 under other than 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 available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

Issue 1. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy. 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.

When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. Characterization of service as other than honorable 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 the award of nonjudicial punishment (NJP) on 2 occasions for violations of the Uniform Code of Military Justice (UCMJ). The applicant’s misconduct included violations of articles 81, 128, and 134. An upgrade to honorable would be inappropriate. 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 additional documentation to support any claims of post-service accomplishments or any other evidence relating 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 9, effective
22 Jul 94 until 02 Oct 96), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – A 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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