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NAVY | DRB | 2004_Navy | ND04-00272
Original file (ND04-00272.rtf) Auto-classification: Denied


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

ex-AOAR, USN
Docket No. ND04-00272

Applicant’s Request
The application for discharge review was received on 20031205. 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 listed a Private Representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041008. 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:

Issue 1: “I P_ A. J_, am writing the review board, to upgrade the current status of my discharge for the reason of financial instability and in the case of the MGIB. I am also trying to reenlist into another branch of the military to support myself. I understand that my conduct was less than becoming and that I don’t deserve all the benefits that a serviceman with an honorable discharge would receive, but I feel I do deserve something.”
Documentation
In addition to the service record, NO 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)     010108 - 010109  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 010110               Date of Discharge: 021021

 Length of Service (years, months, days):

         Active: 01 09 12
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 67

 Highest Rate: AOAA

 Final Enlisted Performance Evaluation Averages (number of marks):

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

 Military Decorations: None

 Unit/Campaign/Service Awards: NUCM, NDSM, SSDR

 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 1910-140 (formerly 3630600).

 Chronological Listing of Significant Service Events :

011123:  NJP for violation of UCMJ, Article 86(9 Specifications), Fail to go to appointed place of duty and unauthorized absence.
         Award: Forfeiture of $521.00 pay per month for 2 months (suspend all but $100.00 for 6 months), restriction and extra duty for 45 days (suspend 31 days restriction for 6 months), reduction to E-1 (suspended for 6 months). No indication of appeal in the record.

011218:  Retention Warning: Advised of deficiency (Commanding Officer’s NJP on 011123 for violation of the UCMJ, Article 86 (9 specs), failure to go to appointed place of duty and Unauthorized Absence. Notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

020314:  Punishment of RIR to E-1 and forfeiture of $942.00 pay per month for 1 month suspended at CO’s NJP of 011123 vacated due to continued misconduct.

020402:  NJP for violation of UCMJ, Article 86(6 Specs), Unauthorized absence from appointed place of duty.
         Award: Forfeiture of $577.00 pay per month for 2 months (suspend all but $150.00 for 6 months), restriction for 18 days, extra duty for 12 days. No indication of appeal in the record.

021021:  Applicant discharge in absentia under other than honorable conditions by reason of misconduct due to a pattern of misconduct per MILPERSMAN 1910-140 [Extracted from DD Form 214].

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged in absentia on 20021021 under other than honorable conditions for misconduct due to a pattern of misconduct (A). After a thorough review of the available records, supporting documents, facts, and circumstances unique to this, the Board found that the discharge was proper and equitable (B and C). The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (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 on two occasions for violating the UCMJ, Article 86 and vacated punishment due to continued misconduct. 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 a general (under honorable conditions) 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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities or to qualify the Applicant for VA benefits 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.

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 9, paragraph 9.3, EQUITY OF THE DISCHARGE

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 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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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