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NAVY | DRB | 2004_Navy | ND04-00994
Original file (ND04-00994.rtf) Auto-classification: Denied


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

ex-SN, USN
Docket No. ND04-00994

Applicant’s Request
The application for discharge review was received on 20040603. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review. The Applicant did not list any representative on the DD Form 293. Subsequent to the submission of DD Form 293, the Applicant designated the American Legion as his representative.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050201. 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 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. “To the Board members, I request that my discharge be upgraded to an honorable discharge because I feel that the type of discharge that I received and the reasons for my discharge were unjust. I worked very hard and served my country to the best of my abilities, and believe that I am worthy of an honorable discharge. I also disagree with the reasons for my discharge. The real reason why I was discharged to begin with is because I owed some student loans prior to entering the military and failed to mention it on my application. I believe that anyone in this country who wishes to get a college education has the RIGHT to do so. I feel that the Navy violated my Civil Rights because they discharged me prematurely, and they did not give me a chance to defend myself. They also should not have added “Pattern of misconduct” for reason of discharge, because they are fully aware that it is not the REAL REASON , but it is ONLY because I failed to mention that I had borrowed money for college. At least, that’s what they claim. It is very important for me to receive my benefits, especially my GI bill, since I contributed $1,200 for it. I should be entitled to that money and be able to reenter the military to serve my country. I have attached two supporting documents proving that the student loan issue has been resolved:

1. AMERICAN STUDENT ASSISTANCE, PAGE 1 OF 1, 1 st PARAGRAPH, 2 nd SENTENCE.

2. ACS, PAGE 1 OF 1, PARAGRAPHS 1 AND 3.

I have also attached two letters of recommendation from my professor and my supervisor in defense of my character as an individual. I hope that you will respond favorably to my request.

 P.S: I typed the issues of section 8 in case you couldn’t read what I wrote.

 Note : The best thing they could have done is to allow me to stay in while I'm paying back my Student loans. That would have been the proper thing do. I could have finished my contract and gotten out with an honorable discharge."

The American Legion submitted no issues for consideration.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
         Miami-Dade Police Department records check, dtd 040526
         Ltr from American Student Assistance dtd 040122
         Ltr from ACS dtd 030505
         Two scholarship recommendations, undated
         Ltr frm Applicant dtd 040721
         Acceptance ltr frm Miami-Dade College dtd 040630
         Ltr frm Applicant dtd 040917

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     991117 - 991212  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 991213               Date of Discharge: 020912

 Length of Service (years, months, days):

         Active: 02 09 00                  [Does not exclude lost time]
         Inactive: None

 Age at Entry: 26                          Years Contracted: 6

 Education Level: 12                        AFQT: 87

 Highest Rate: FC3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NFM*                 Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 5

*No marks found

 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 :

010703:  Retention Warning: Advised of deficiency (Violations of Articles 86, 90 and 91), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

010709:  NJP for violation of UCMJ, Article 86 (2 Specs): UA from place of duty; violation of UCMJ, Article 90: fail to obey DIVO; violation of UCMJ, Article 91: Fail to obey Element CPO.
         Award: Forfeiture of $500 per month for 2 month(s), correctional custody for 30 das, reduction to E-3. No indication of appeal in the record.

010716:  NJP for violation of UCMJ, Article 86: Absent from unit from 010709 -010715.
 Award: Forfeiture of $500 per month for 2 month(s), correctional custody for 30 das and reduction to E-2. No indication of appeal in the record.
020111:  NJP for violation of UCMJ, Article 128: Specification 1: Did throw a cylinder of knives at QMSN F_ G. M_ on 011215. Specification 2: Did throw a cylinder of knives at ET1 N_ M. _ J_ on 011215. Violation of Article 107: With intent to deceive make an official statement to wit; “I didn’t throw any knives.”
Award: Restriction and extra duty for 15 days. No indication of appeal in the record.
020812:  Commander, Navy Personnel Command informed USS MOUNT WHITNEY (LCC 20) that the Applicant’s security review revealed financial delinquency of $15,886.00.
020903:  Applicant notified of intended recommendation for discharge by reason of misconduct due to a pattern of misconduct as evidenced by all your NJP’s and by reason of fraudulent entry into the Naval service as evidenced by your failure to disclose financial delinquency. Applicant informed least favorable characterization of service possible as general (under honorable conditions).
020904:  Applicant advised of rights and having elected not to consult, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation

Complete discharge package not contained in service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020912 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).

Issue 1. The Applicant contends that he worked hard and served to the best of his ability and that he is “worthy of an honorable discharge.” 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. 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 three nonjudicial punishment proceedings for violations of Articles 86, 90, 91, 107 and 128 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. Relief is not warranted.

The applicant was processed for separation by reason of misconduct due to a pattern of misconduct and by reason of defective enlistment and induction due to fraudulent entry . The separation authority determined that a pattern of misconduct most clearly described the reason for discharge. No other Narrative Reason for Separation could more clearly describe why the applicant was discharged. To change the Narrative Reason for Separation would be inappropriate. Relief denied.

The Applicant states that “the Navy violated my Civil Rights because they discharged me prematurely.” The Board found no evidence in the record or in the documents provided by the Applicant that he was denied due process or that his rights were violated. He was properly notified and he acknowledged and waived his rights to administrative review. Relief denied.

The Veterans Administration determines eligibility for post-service benefits not the Navy 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.

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. 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.

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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