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NAVY | DRB | 2004_Navy | ND04-00051
Original file (ND04-00051.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND04-00051

Applicant’s Request
The application for discharge review was received on 20031008. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requests a documentary record 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 20040715. 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/Misconduct - 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. “I feel my RE-CODE was unfairly placed on my record for the 2yrs 8mon 23day on active duty on account of 2 mishaps on my part, I made a mistake as a young man with wild dreams. I would like my re-code upgraded to at least #3 and have my other than honorable discharge brought up to a general under honorable. Thank you.

To Whom It May Concern,

My name is W_ D_ F_ Jr., SSN [deleted]. The reason for this letter is to have my RE Code on my DD214, changed from Other than Honorable to Honorable. The letter enclosed is an explanation of my situation. I was enlisted in the United States Navy
from May 18 , 1989 to Feb 10th 1992.

When I arrived at my command, which was in Pearl Harbor, Hawaii, our ship, the USS Rathburne, was sent out on a West Pac Cruise which was the time of my life and a great learning experience for me. I was content within myself that I had made the decision to join the US Navy.

Upon returning from sea, I met C_ W_, the daughter, of an Army lst Sergeant, T_ W_, who had retired after 23 years of serving in the US Army.
C_ and I got married on Sept 5th, 1990. Our daughter was born in May 1991 and 5 days after her birth, I again was deployed on a 3 month Legal Cruise, which was partly exciting, but I was dealing with the fact of being away from my newborn daughter and wife.

While out to sea, I found out that my wives father was terminally ill with cancer and only had a few months to live. Red Cross sent her the message and she had let me know that while I was out to sea, she was going to the Mainland to be with her father. That itself put a strain on our marriage, yet I tried to understand, that Cindy was very close to her father, and I was not there in Hawaii to emotionally support her.

When the USS Rathburne returned to Hawaii, I had found out that my parents are getting a divorce, Cindy’s father was slipping away more and more every day and all I did was watch my wife cry and tell me she was leaving to the Mainland to be with her father.

I had decided the best thing to do, was get out of the Navy and take my family back to the Mainland. The pressures of all that was happening in our lives, was to overwhelming for me to handle. I was 21 years old and just felt like the whole world was coming apart.
In late 1991, the USS Rathburne 1057, was going to be decommissioned. I had been chosen to be part of the Hablity Team. I had put in orders to attend school and receive shore duty to ease the hardship I was in. My chief had denied my orders and I knew that my marriage would end. Not putting great thought into my decision, I requested to get an early out. After making this decision, I started talking with the Base Chaplain, who in return spoke with my Executive Officer.

When taken into Captains Mass, my records were looked over, and the conducts were looked into, and I was granted my Early Out.

On Feb 10th, 2002, while processing out in Treasure Island, CA, my wife, who was still in Hawaii, processing our move and the Red Cross contacted the Chief at Treasure Island, to inform me that my Father-In-Law, T_ W_, had passed away. The paperwork was processed that day and I was processed out with a RE: Code of 4.

I know now that I should have handled all the situations in my life and my career with the US Navy a different way. I cannot change the path that I have taken, but tall am going to request that my Code of 4 be upgraded to a good status, so that I can have the chance to re-enlist in the Military.

My wife and I have now grown up and have learned that the best way to handle any situation is to face the problem and situation head on and stand tall. On Oct 21, 2001, I have spoken with a recruiter and he has let me know that I will need to have my DD2 14 code changed.

I am a very responsible man and have been a truck driver for over 9 years now. I know that there are going to be trials and tribulations in life, and the best thing to do is to face the situation and use the best of your ability and to stick to the commitments that you have committed to.

I have now found the address to write to you and ask you to change my Code 4 to a good status, so that I may fulfill my dream of having a Military Career. I will not give up, and I am in there for the long haul. I only hope and pray that you can understand my difficult times I endured and that you would be willing to help me in my quest to redeem myself and consider my request for Discharge Upgrade on form DD2 14.


Patiently Awaiting your Consideration
Thank You”







 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Employment Reference Letter dated December 23, 2002
Employment Reference Letter dated December 11, 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     890422 - 890517  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 890518               Date of Discharge: 920210

 Length of Service (years, months, days):

         Active: 02 08 23
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 28

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.60 (4)    Behavior: 3.30 (4)                OTA: 3.29

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, AFEM, SSDR(2 ND )

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

900910:  NJP for violation of UCMJ, Article 86: Absence, from unit, organization, or place duty, violation of UCMJ, Article 107: False official statements, violation of UCMJ, Article 89: Disrespect towards a Superior Commissioned Officer.
         Award: Restriction and extra duty for 30 days. No indication of appeal in the record.
911114:  Retention Warning from [USS RATHBURNE (FF-1057)]: Advised of deficiency (Financial irresponsibility, negligent indebtedness to the U.S. Government, continued indebtedness to civilian creditiors), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920102:  NJP for violation of UCMJ, Article 86 (2 Specs): Unauthorized absence.
         Award: 30 days extra duty. No indication of appeal in the record.

920110:  Retention Warning from USS RATHBURNE (FF-1057): Advised of deficiency (Violation of the UCMJ, Article 86: Unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920110:  NJP for violation of UCMJ, Article 86: Unauthorized absence.
Award: Forfeiture of $100.00 pay per month for 2 months, reduction to E-2 (suspended for 2 months). No indication of appeal in the record.
920121:  USS RATHBURNE (FF-1057) 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 all punishments under the UCMJ in your current enlistment.

920122:  Punishment of RIR to SA suspended at Commanding Officer’s NJP of 920110 vacated this date due to continued misconduct.

920122:  NJP for violation of UCMJ, Article 86: (3 Specifications), Unauthorized absence.
         Award: Forfeiture of $200.00 pay per month for 2 months, reduction to E-1. No indication of appeal in the record.
920123:  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.
920124:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

920203:  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 19920210 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 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. A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor. The Applicant’s service was marred by award of nonjudicial punishment (NJP) on four occasions. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable or under honorable (general) characterization of service. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.
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’s discharge characterization accurately reflects his service to his country for the enlistment under review. The discharge was proper and equitable. 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. 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 not warranted.

The Applicant 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. 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, effective 15 Aug 91 until
04 Mar 93), 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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