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NAVY | DRB | 2004_Navy | ND04-00458
Original file (ND04-00458.rtf) Auto-classification: Denied


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

ex-MSSR, USNR
Docket No. ND04-00458

Applicant’s Request
The application for discharge review was received on 20040123. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record review. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20041122. 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. “Im asking for a upgrade from O.T.H to honorable discharge. Due to the fact I made a mistake when I was young Im asking, requsting my discharge be review. I really regret that I let being foolish and young get in the way of my dream. Im asking for forgiveness from the United States Navy Corp.

I have 3 kids and married Im a very positive young man Iv’e got a degree in school. I’ve did a lot of growing up. I wish someday I could serve for the Arm Forces again.”
Documentation
Only the service record was reviewed, as the Applicant did not submit any additional documentation for the Board to consider.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     880330 - 881003
         Active: None

 Period of Service Under Review :
Date of Enlistment: 881004               Date of Discharge: 910314

 Length of Service (years, months, days):

         Active: 01 09 21 (Does not include lost time)
         Inactive: 00 06 04

 Age at Entry: 20                          Years Contracted: 8

 Education Level: 12                        AFQT: 36

 Highest Rate: MSSA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.87 (3)    Behavior: 3.00 (3)                OTA: 3.60

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, LOC

 Days of Unauthorized Absence: 201

 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 :

880330:  Applicant enlisted for 36 months in the Active Mariner Program.

881004:  Applicant ordered to active duty.

890615:  NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ, Article 87: Missing ship’s movement.
         Award: Extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
900809:  NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ, Article 87: Missing ship’s movement.
         Award: Forfeiture of $100 per month for 2 months, extra duty for 45 days, reduction to E-1. No indication of appeal in the record.

900815:  Retention Warning from [USS HARRY E. YARNELL, CG-17]: Advised of deficiency (Violation of UCMJ, Articles 86/87 – Unauthorized absence for 79 days and missing ship’s movement), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910221:  NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ, Article 87: Missing ship’s movement.
         Award: Forfeiture of $380 for 1 month, restriction and extra duty for 45 days. No indication of appeal in the record.

910223:  USS HARRY E. YARNELL (CG-17) notified Applicant of intended recommendation for discharge with a least favorable characterization of under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
910224:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
910226:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

910305:  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 19910314 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: Normally, to permit relief, a 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. Relief not warranted.

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 three occasions for 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 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 characterization of service. Relief denied.

 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.

The following is provided for the edification of the Applicant. 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 naval service. The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. The Applicant’s evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his discharge. Therefore, no relief will be granted.
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. 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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