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NAVY | DRB | 2004_Navy | ND04-00985
Original file (ND04-00985.rtf) Auto-classification: Denied


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

ex-STGSA, USN
Docket No. ND04-00985

Applicant’s Request
The application for discharge review was received on 20040604. 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 “MISCONDUCT-MINOR.” 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 20050304. After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service or narrative reason for separation 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: 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 received 040604:

1. “LACK OF EVIDENCE AND EXAGGERATION OF REASNO. RESPECTFULLY REQUESTING CHANGE OF CHARACTERIZATION OF SERVICE TO HONORABLE AND LIKEWISE CHANGE NARRATIVE REASON FOR SEPARATION TO MISCONDUCT-MINOR INFRACTIONS WITH A REEENTRY CODE OF RE-1 OR RE-1A. APPLICANT REQUESTS THAT MILPERSMAN 1910-138 BE CONSIDERED IN THE REVIEW PROCESS IN THAT, MEMBERS CAN BE PROCESSED FOR SEPARATION AFTER THREE (3) BUT NO MORE THAN (8) MINOR VIOLATIONS OF THE UCMJ. IT IS PUT TO THE BOARD TO FIND THESE INFRACTIONS AS MINOR AND CHANGE APPLICANT’S CHARACTERIZATION OF SERVICE TO HONORABLE AND ALLOW FOR A REENLISTMENT CODE HIGHER THAN THAT OF RE-4. UPON REVIEW OF APPLICANT’S DD-214, A SEPARATION CODE OF “JKA” WILL BE NOTICED. THIS CODE STATES THAT THE APPLICANT DEVELOPED A PATTERN OF DISCREDIBLITY FOR BEHAVIOR WITH CIVIL OF MILITARY AUTHORITIES. THERE IS NO EVIDENCE OF THIS IN THE APPLICANT’S SERVICE RECORD. THE APPKLICANT DID RECEIVE NUMEROUS COUNCELINGS, AN OFFICER-IN-CHARGE INQUIRY, AN EXECUTIVE OFFICER’S INQUIRY, AND TWO (2) CAPTAIN’S MASTS. GIVEN THE EVIDENCE IN STGSA E_’S SERVICE RECORD, IT IS BELIEVED THAT FAVORABLE ACTION CAN BE TAKEN.”

Applicant’s issues, as stated on the application received 050203:

2. “APPLICANT NEVER STOOD BEFORE AN ADMINISTRATIVE SEPARATION BOARD APPOINTED BY THE SEPARATION AUTHORITY AND THEREFORE WAS DENIED HIS RIGHTS. THE COMMANDING OFFICER’S DECISION BECAME FINAL HOWEVER, ILLEGAL. ALSO, APPLICANTS INFRACTIONS WERE MINOR IN NATURE AND NO NOT NECESSARILY REQUIRE AN RE CODE OF 4.

ADMINISTRATIVE SEPARATIONS REQUIRE A BOARD OF REVIEW APPOINTED BY THE SEPARATION AUTHORITY TO DETERMINE IF SEPARATION IS WARRANTED. ALSO THIS SHOULD BE HELD SEPARATE FROM CAPTAIN’S MAST TO GIVE THE MEMBER TIME TO PREPARE TO DEFEND HIS CAREER. A CAPTAIN’S MAST CAN CHOOSE TO RECOMMEND SEPARATION HOWEVER, THE APPLICANT SHOULD BE GIVEN TIME BETWEEN DEFENDING HIS ACTIONS AND DEFENDING HIS CAREER. APPLICANT RESPECTFULLY REQUESTS THE ALTERATION TO MY DD-214 TO GIVE HIM ANOTHER CHANCE TO PRESERVE HIS MIITARY CAREER. THE BOARD IS URGED TO THIS INJUSTICE.”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
2 pages from MILPERSMAN 1910-138
32 pages from SECNAVINST 1910.4B
82 pages from SECNAVINST 1920.6A


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     020723 - 021209  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 021210               Date of Discharge: 031017

 Length of Service (years, months, days):

         Active: 00 10 08
         Inactive: None

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

 Education Level: 12                        AFQT: 90

 Highest Rate: STGSA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (1)             Behavior: 1.00 (1)                OTA: 2.67

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 1

 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 :

030723:  Retention Warning: Advised of deficiency (violation of Articles 86 and 107 of the UCMJ), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

030723:  NJP. [No other information available, extracted from NAVPERS 1070/604 and NAVPERS 1070/613.]

 030911:  NJP for violation of UCMJ, Article 86 (3 Specs): Spec 1: UA from place of duty. Spec 2: UA from organization from 030827 to 030828 (approximately 34 hours). Spec 3: UA from place of duty, Article 92: Failure to obey an order or regulation.
         Award: Restriction and extra duty for 20 days. No indication of appeal in the record.
031002:  Commanding Officer, Fleet Anti-Submarine Warfare Training Center, directed Applicant's general (under honorable conditions) discharge by reason of misconduct due to a pattern of misconduct with a separation code of JKA.

*Complete discharge package not contained in service record

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20031017 with a general (under honorable conditions) characterization by reason of misconduct due to a pattern of misconduct (A). After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, 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).

Issues 1-2. Reference (A) indicates that a member may be separated by reason of pattern of misconduct for two or more non-judicial punishments if the member also violated a NAVPERS 1070/613 warning (retention warning) prior to the last NJP. The Applicant was subject to nonjudicial punishment proceedings on 20030723 and 20030911. The Applicant also violated his retention warning of 20030723 with further misconduct as evidenced by his misconduct adjudicated on 20030911 at NJP. The summary of service clearly documents that misconduct due to 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. Additionally, separation by reason of misconduct due to minor disciplinary infractions requires that none of the reasons for discharge could have resulted in a punitive discharge. The Applicant’s Article 92 violation is considered a serious offense and is punishable by punitive discharge. Therefore, a discharge by reason of misconduct due to minor disciplinary infractions would have been improper. Relief denied.

Based upon the Applicant’s rank and time in service, Reference (A) indicates that the offer of an administrative board is not required when the member is notified of pending administrative separation with the least favorable characterization of general (under honorable conditions). The Applicant’s character of service is general (under honorable conditions). In the absence of persuasive evidence to the contrary and under the presumption of regularity, the Board determined that the Applicant was properly notified and found no impropriety or inequity in the Applicant’s character of service. Relief denied.

On 20021003 the General Court-Martial Convening Authority directed the Applicant’s discharge with a separation code of JKA. In the absence of persuasive evidence to the contrary and under the presumption of regularity, the Board determined that the Applicant’s separation code was proper and equitable. Relief denied.

 Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code. 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. 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 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .
D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, 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 “ http://Boards.law.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:

                  Secretary of the Navy Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023

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