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NAVY | DRB | 2004_Navy | ND04-00806
Original file (ND04-00806.rtf) Auto-classification: Denied


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

ex-BUCN, USN
Docket No. ND04-00806

Applicant’s Request
The application for discharge review was received on 20040422. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance discharge review before a traveling panel closest to Birmingham, Alabama. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing and that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area. The Applicant did not list any representative on the DD Form 293.
Decision

A documentary discharge review was conducted in Washington, D.C. on 20041029. 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: GENERAL (UNDER 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. “Trying to enlist into the ROTC Program at the University of Alabama of Birmingham.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     980723 - 980730  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 980731               Date of Discharge: 991124

 Length of Service (years, months, days):

         Active: 01 03 24
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4 (12 months extension)

 Education Level: 12                        AFQT: 76

 Highest Rate: BU3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA*        Behavior: NMA             OTA: NMA

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: None

*No Marks made available for review

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

GENERAL (UNDER HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

 Chronological Listing of Significant Service Events :

991008:  Retention Warning: Advised of deficiency (CO’s NJP on 991008 for violation of the UCMJ, Article 86, fail to go at the time prescribed to appointed place of duty, Article 134, Incapacitation for performance of duties through prior wrongful indulgence in intoxicating liquor, and Article 134, underage drinking on 990819), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

991008:  NJP for violation of UCMJ, Article 86: UA from appointed place of duty, violation of UCMJ, Article 134: (2 Specifications), incapacitated for performance of duty through wrongful indulgence in intoxicating liquor and underage drinking on 990819.
         Award: Forfeiture of $200.00 pay per month for 2 months (1 month suspended for 6 months), restriction and extra duty for 45 days, reduction to E-3. No indication of appeal in the record.

991026:  Punishment of forfeiture of $200.00 pay per month suspended for 1 month at CO’s NJP on 991008 vacated due to continued misconduct.
991112:  Psychiatric Evaluation: On 991112, our Battalion Medical Officer forwarded a psychiatric consultation on behalf of BUCN G___ to Dr. M___K. H___, Ph.D. Clinical Psychologist. This consultation was requested based on BUCN G___’s self-injury incidents on 991025 and 991103. On 991116, BUCN G___ was diagnosed with a personality disorder with antisocial and borderline traits. Dr. H__ further determined that BUCN G___ was unsuitable for continued military service and strongly recommended administrative separation. Although BUCN G___ is not presently suicidal or homicidal, he is judged to represent a continuing risk to himself, others and Government property.

 991119:  NJP for violation of UCMJ, Article 91 (2 Specifications), insubordinate conduct towards a Superior Petty Officer on 991025 and 991026; violation of UCMJ, Article 92: (4 Specifications), failure to obey a lawful written order, to wit: CO’s NMCB FIVE Restriction Orders on 991024, 991025, 991101, and 991103; violation of UCMJ, Article 134: (2 Specifications), Self injury without intent to avoid service, to wit: intentionally carve the letter “FTN” in his arm with a knife on 991025 and intentionally swallow an unknown amount of floor stripper on 991103.
         Award: Forfeiture of $500.00 pay per month for 2 months (1 month suspended for 6 months), restriction and extra duty for 45 days. No indication of appeal in the record.
991119:  Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of misconduct due to a pattern of misconduct evidenced by two Commanding Officer’s non-judicial punishment on 991008 and 991119 and misconduct due to commission of a serious offense as evidenced by violation of the UCMJ, Article 91 (2 specifications), Insubordinate conduct towards a Petty Officer on 991025 and 991026; Article 92 (4 specifications), Failure to obey a lawful written order, to wit: CO, NMCB FIVE Restriction Orders 5812 Ser x3/208 991101, and 991103; Article 134 (2 specifications), Self-injury without intent to avoid service on 991025 and 991103.
991119:  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

991124:  Commanding Officer directed Applicant discharge general (under honorable conditions) by reason of misconduct due to a pattern of

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19991124 with a characterization of general (under 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. A General 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 two nonjudicial punishment proceedings for 11 violations of Articles 86, 91, 92 and 134 of the UCMJ. In addition, the Applicant’s punishment suspended on 19991008 was vacated on 19991026 indicating further misconduct. 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 denied.

Concerning reenlistment, 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. 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. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.

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), Change 18, effective
12 Dec 1997 until 21 Aug 2002, 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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