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NAVY | DRB | 2004_Navy | ND04-00055
Original file (ND04-00055.rtf) Auto-classification: Denied


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

ex-AR, USN
Docket No. ND04-00055

Applicant’s Request
The application for discharge review was received on 20031006. 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 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 20040712. 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, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated
Applicant’s issues, as stated on the application:

1. “My main concern is that my re code be upgraded so that I may enter the army National Guard for a time and prove myself worthy of active duty army. Please, consider my request, I love serving in the military. The reason I was discharged from the navy was a “Pattern of Misconduct” basicly I went to NJP three times after the first time which was for defending myself from another service member and then fifteen other people jumped in and they all proceeded to beat me sevearly and I was charged with assult. When I went to my disciniplery review board they said that my memory of it sounded fuzzy because it was at night and I was trying to cover my face as they were kicking me all over my head. Anyhow they said that because I couldn’t remember details I must have been drunk and charge me with that aswell, I have witness statements saying I did not start the fight and that I was not drinking, but they guy who started the fight was drunk and incedently shortly after was discharged for testing positive for chrystal meth. I was put on 45 days restriction. After that my chain of command treated me like I was nothing constantly sending me to mess duty and labeling me a trouble maker. I understand I shouldn’t have let it get to me like it did, but from that I started getting in more trouble, things like going out of bounds without a liberty chit or, excuse me, a leave chit, and the straw that broke the camels back, I was charged disobey of a lawful written order by drinking in Guam with a marine corps sergeant, but I have statements saying it was never put out in the pod that we couldn’t drink that day and everyone went out and drank that day but I was singled out. I’m sorry for wrighting this much I’m sure whoever is reading this wants to get home already so in conclusion please consider upgrading my re code because I’m so young to just get kicked out for getting in some minor trouble any teenager would normaly get into and all I want is to get back to serving my country. Thank you for your time and consideration.”

Sincerely
J_ O_ M_ (Applicant)
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Character witness from ABF3 O_, dated July 31, 2003.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     010928 - 011113  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 011114               Date of Discharge: 030228

 Length of Service (years, months, days):

         Active: 01 03 15
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 33

 Highest Rate: AA

 Final Enlisted Performance Evaluation Averages (number of marks):

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

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

 Chronological Listing of Significant Service Events :


020801:  NJP for violation of UCMJ, Article 117 provoking speeches and gestures, violation of UCMJ, Article 128: Assault.
 Award: Forfeiture of $552.00 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
020801:  Retention Warning: Advised of deficiency (provoking speeches and gestures, assault), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
021031:  NJP for violation of UCMJ, Article 121: Larceny (less than $100.00).
 Award: Forfeiture of $552.00 per month for 2 months (1 month suspended for 6 months), correctional custody for 30 days. Reduction in rate to E-1.
030214:  Vacate forfeiture of $552.00 per month for 1 month awarded at Commander Officer’s NJP dated 021101 vacate due to continued misconduct.

030214:  NJP for violation of UCMJ, Article 92 (2 specs): (1) Failure to obey other lawful written order, to wit: wrongfully drinking alcoholic beverages while under the age of 21 years old, (2) Failure to obey other lawful written order, to wit: wrongfully being excessively intoxicated while on liberty, violation of UCMJ Article 91: Insubordinate conduct towards a Petty Officer on 030103, to wit: by saying “shut the fuck up”.
         Award: Forfeiture of $600 per month for 2 months, restriction and extra duty for 30 days. No indication of appeal in the record.

030214:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and due to the commission of a serious offense.

030214:  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.
030214:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and due to the commission of a serious offense. Commanding Officer’s comments: It is very clear that AR M_ (Applicant) is unsuitable for further military service due to his pattern of misconduct and commission of serious offenses. AR M_ (Applicant) has exhibited total disregard for the Navy’s rules and regulations as apparent by his continuous misconduct. Due to his actions AR M_ (Applicant) is unable to function in the trusted capacity as a Sailor. As his behavior is a hindrance to good order and discipline, I strongly recommend that AR M_ (Applicant) be immediately separated from the naval service with an other than honorable discharge.

030226:  COMPHIBGRU THREE directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030228 under other than honorable conditions for misconduct due to commission of a serious offense (A & B). The Board presumed regularity in the conduct of governmental affairs (C). 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 (D and E).

Issue 1. When the service of a member of U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. An Under Other Than Honorable Conditions discharge 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 three nonjudicial punishment proceedings for six violations of the UCMJ, to include violations of Articles 91, 92, 117, 121 and 128. The Applicant was disrespectful to a Petty Officer, consumed alcohol underage, and committed larceny and assault. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reentry into the naval service or any other of the Armed Forces. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy or Marine Corps. Reenlistment policy of the naval service is promulgated by the Commander, Navy Recruiting Command, 5722 Integrity Drive, Bldg 784, Millington, TN 38054. 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.

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 02 until Present, Article 1910-142 [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B. In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 91, if adjudged at a Special or General Court Martial

C. 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.

D. 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.

E. 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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