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NAVY | DRB | 2004_Navy | ND04-00316
Original file (ND04-00316.rtf) Auto-classification: Denied


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

ex-SR, USNR
Docket No. ND04-00316

Applicant’s Request
The application for discharge review was received on 20031210. The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to convenience of the government reenlistment code to RE1. 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 20040910. 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 and reason for 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 was so close to finishing my tour that it was unfair to give me a bad discharge. The navy kept me almost a couple of more month & my enlistment could have end it.”

2. “I have been a good citizen since my discharge, yes sir since my discharge I never been in trouble even before I joint the Navy I never been in any kind of trouble.”

3. “My record of U.A. indicates only minor or isolated offenses, none of my act were in any way of misconduct, just time off I took to take care of personal problems.”

4. “My ability to serve was impaired because of Marital and family probles, that is why I went U.A. I ask for help in Legal Dept the Navy Legal did not help me with my divorce, that was very sad they said they will help me with criminal matters.”

5. “I tried to served and wanted to, but just couldn’t or wasn’t able to due to the fact my divorce going real bad. I ask for help & got turn down, I was going crazy and did not know what I was doing when I when U.A.”

6. “My average conduct and efficiency rating/behavior & proficiency marks were pretty good. I never developed any negative thinking toward the U.S. Navy as you can see my evaluation where ok.”

7. “As you can see on December of 1988 I received a letter of appreciation from Commandin Officer USS Butte (AE-27).”

8. “Also as you can see on my copies of military documents I did my P,Q,S, my military leadership exam, my course for mess specialist 3 & 2.”

9. “I have included characters references from fellow shipmates & supervisors on Board the Butte that can asure you I was a good guy on board the ship but made a big mistake when I when U.A also I have included references from past employer.”

10. “Before I joint the Navy I was an Auxiliary Police Office w/ the NYPD got a couple of awards, letters of commendation, etc, etc. Clemency is warranted because it is injustice for me to continue to suffer the adverse consequences of a bad discharge I which this time you will carefully look at my case sir and consider your recommendation to change my discharge to Honorable, I am very sorry for the the mistake I made while in the U.S. Navy of going U.A. that was very childish on my part and very dumb. I just wish sir if I was giving another change I will do it all over againt with pride and dignity to serve the United States of America with out doing any thing like going U.A.”


 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Resume
Copy of DD Form 214
Copies of Certificate of Accomplishment (Intermediate Training Course) from the City of New York Police Department dated December 5, 1984 (2)
Copy of Award of Merit from the City of New York Police Department dated June 30, 1985
Copy of Award of Merit from the City of New York Police Department dated April 17, 1984
Copy of Letter of Designation to Acting Auxiliary Sergeant dated May 4, 1985.
Copy of Letter of Commendation dated June 10, 1985
Copy of Thank You Letter for participation in Cuban Day Parade dated May 27, 1985
Copy of Certificate of Completion (Lethal Weapon Training) dated February 21, 1986
Copy of Security Guard Training Certificate dated February 13, 1996
Copy of Security Guard Training Certificate dated November 1-3, 1997
Copy of Security Guard Training Certificate dated October 8, 2003
Copy of License from Department of Consumer Affairs
Copies of Security Guard Identification from New York State Department (2)
Copy of Enlisted Performance Evaluation Report (2pages)
Copy of Letter of Appreciation dated December 12, 1988
Copy of Memorandum (Completion of Fireman Course NAVEDTRA 10520-G) dated April 28, 1988
Copy of Enlisted Performance Record
Copies of Personnel Qualification Standards Listing (2)
Copy of Navy Enlisted Qualification Record
Copy of MS Training Listing
Copy of Individual Training Record (3 pages)
Copy of Letter of Commendation from Y__ L___ Justice, Supreme Court dated August 17, 1998
Character References Letters (24)
Employment Reference Letters (2)
Copy of Certificate of Birth
Copy of DD Form 214
Resume
Employment/Character Reference Letters (4)

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: 870630               Date of Discharge: 910206

 Length of Service (years, months, days):

         Active: 02 09 05
         Inactive: 00 10 01

 Age at Entry: 24                          Years Contracted: 8

 Education Level: 12                        AFQT: 25

 Highest Rate: FA

 Final Enlisted Performance Evaluation Averages (number of marks):

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

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR

 Days of Unauthorized Absence: 90

 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 :

880501:  Order to active duty for 36 months under the Active Mariner program.
890408:  UA from USS BUTTE {AE-27}.

890508:  Apprehended by Keyport Police Department. Returned to USS BUTTE {AE-27}{29days}

890526:  UA from USS BUTTE {AE-27}.

890608:  Surrendered to COMLOGRON TWO, NUS EARLE, New Jersey {13days}.

890629:  Retention Warning from [USS BUTTE {AE-27}: Advised of deficiency (Violation of UCMJ Article 86 (Unauthorized absence) and Article 87 (Missing ship’s movement) as evidenced by CO’s NJP of 890629, notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

890629:  NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ, Article 87: Missing ship’s movement.
         Award: Forfeiture of ½ pay per months for 2 months (suspended for 6 months), restriction and extra duty for 45 days. No indication of appeal in the record.

900104:  UA from USS BUTTE {AE-27}.

900123:  Surrendered onboard USS BUTTE {AE-27}{18days}.

900126:  NJP for violation of UCMJ, Article 86: Unauthorized absence.
         Award: Forfeiture of $300.00 pay per months for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.

900720:  UA from USS BUTTE {AE-27}.

900820:  Surrendered onboard USS BUTTE {AE-27} {30days}

900830:  NJP for violation of UCMJ, Article 86: Unauthorized absence.
         Award: Restriction and extra duty for 45 days. No indication of appeal in the record.
900907:  [USS BUTTE {AE-27}] 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 CO’s NJP of 890629, 900126, and 900830.
900907:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
901024:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to a pattern of misconduct, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

901107:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

901123:  NJP for violation of UCMJ, Article 86: Unauthorized absence.
         Award: Restriction and extra duty for 15 days. No indication of appeal in the record.

910118:  CNMPC 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 19910206 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).

Issues 1, 3, 5-9. When the service of a member of the 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 four nonjudicial punishment proceedings for five violations of Articles 86 and 87 of the UCMJ. 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. Additionally, the summary of service clearly documents that misconduct due to a pattern of misconduct was the reason the Applicant was discharged. No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. 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 consider his discharge proper and equitable. Relief denied.

Issue 2. 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. The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that his discharge was appropriate and that his evidence of post-service conduct was found not to mitigate the conduct for which he was discharged. Relief denied.

Issue 4. The Applicant contends his disciplinary problems were the result of marital family problems. The NDRB recognizes that serving in the U.S. Navy is challenging. Our country is fortunate to have men and women willing to ensure the hardships and sacrifices required in order to serve their country. It must be noted that most members of the Navy serve honorably and therefore earn their honorable discharges. In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. The NDRB found that the Applicant's service was equitably characterized. Relief denied.

Issue 10. To permit relief, an impropriety or inequity must be found to have existed during the period of enlistment under review. There was nothing in the records, nor did the applicant provide any documentation, to indicate there existed error of fact, law, procedure, or discretion at the time of discharge. There was no rights violation and no basis for relief. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

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. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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 15560A, Change 8 effective 21 Aug 89 until 14 Aug 91), 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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