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NAVY | DRB | 2004_Navy | ND04-00739
Original file (ND04-00739.rtf) Auto-classification: Denied


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


ex-MMFR, USN
Docket No. ND04-00739

Applicant’s Request
The application for discharge review was received on 20040330. 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 20041103. 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:
1. “Requesting discharge upgrade from “under other than Honorable Conditions” to a “General Discharge”
See: Reference Attachments
Character References - 6 pages”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Character reference from Applicant’s mother, dated March 23, 2004
Character reference from Applicant’s grandfather, undated
 Letter from Congress of the United States, House of Representatives, dated January 21, 2004
 Letter from Mayor, Rockingham, North Carolina, dated December 30, 2003
 Character reference, dated January 21, 2004
 Letter from Instructor, Sandhills Community College, dated February 11, 2004
Letter from Department of the Navy, USS KITTY HAWK (CV-63) to Applicant’s father, dated February 21, 2002
 E-mail from Applicant’s mother, dated March 5, 2002
 E-mail correspondence between Applicant’s father and USS KITTY HAWK (CV-63), dated March 8, 2002 (3 pages)
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     001107 - 010122  COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 010123               Date of Discharge: 021205

 Length of Service (years, months, days):
         Active: 01 09 11         (Excludes lost time)
          Inactive: None
Age at Entry: 18                          Years Contracted: 4

 Education Level: 10                        AFQT: 33
Highest Rate: MMFA

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 1.00 (1)    Behavior: 1.00 (1)                OTA: 1.17

 Military Decorations: None
Unit/Campaign/Service Awards: NDSM
Days of Unauthorized Absence: 32

 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 :

020613:  Applicant to unauthorized absence 0630, 020613.
020715:  Applicant from unauthorized absence, 0945, 020715 (32 days/surrendered).
020806:  Summary Court-Martial.
          Charge I: violation of the UCMJ, Article 86:
          Specification: Unauthorized absence for a period of approximately 32 days.
          Finding: to the Charge and the Specification thereunder, guilty.
          Sentence: Confinement for 28 days.
         CA action 020812: Sentence approved and ordered executed.

020821:  Retention Warning: Advised of deficiency (Unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

021030:  NJP for violation of UCMJ, Article 86: Unauthorized absence from appointed place of duty.
         Award: Forfeiture of $578 per month for 2 months, confinement on bread and water for 3 days, reduction to E-1. No indication of appeal in the record. [Extracted from Commanding Officer’s letter dated 021104.]
021030:  Applicant notified 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 and misconduct due to commission of a serious offense.
021030:  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

021104:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.
021107:  Commander, Carrier Group FIVE 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 20021205 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, an impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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 summary court-martial and nonjudicial punishment proceedings for two violations of Article 86 of the UCMJ. The Applicant was in an unauthorized absence status for a total of at least 32 days. 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. 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.

The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant 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.

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 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 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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