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NAVY | DRB | 2004_Navy | ND04-01053
Original file (ND04-01053.rtf) Auto-classification: Denied


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

ex-ABEAN, USN
Docket No. ND04-01053

Applicant’s Request
The application for discharge review was received on 20040618. 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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041112. 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, authority: NAVMILPERSMAN, Article 3630600.
PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated
Applicant’s issues, as stated on the application:

 1. “I was in the Navy for 61/2 years without any disciplinary problems. I advanced to E-5. During the last month of my term of duty I was going through personal problems due to a legal separation and my wife requesting a divorce. This caused tremendous stress on me while deployed and unable to attempt to work out our marital difficulties while away from home. This stress manifested itself as problems while on duty. I served honorably for the prior 61/2 years. I should not be penalized due to problems beyond my control. I wish to rejoin the military at this point in time to serve my country. I am unable to due so due to the type of discharge and reentry code I was given at the time of discharge. I fell that I am being unfairly penalized after 61/2 years of honorable service in the service of my country. I did not experience any problems in the military until I was confronted with circumstances beyond my control due to the stress caused as a result of my marital problems.”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s letter dated 040524
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR            870928 - 880724  COG
         Active: USNR              880724 - 910724  HON

 Period of Service Under Review :
Date of Enlistment: 910725               Date of Discharge: 950120

 Length of Service (years, months, days):

         Active: 03 05 26
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 77

 Highest Rate: ABE2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.90 (6)    Behavior: 3.36 (6)                OTA: 3.50

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SASM (2), MUC, GCM

 Days of Unauthorized Absence: 4

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

940916:  NJP for violation of UCMJ, Article 91 [3 specs]:
 Spec 1: Disrespectful in language toward a PO1, 940912. Spec 2: Disrespectful in deportment toward a PO1, 940912, Spec 3: Willfully disobey a lawful order from a PO1 on 940912.
         Award: Forfeiture of $250 per month for 1 month, restriction and extra duty for 12 days, reduction to E-4. No indication of appeal in the record.
940920:  Retention Warning: Advised of deficiency (CO’s NJP on 9400916 for being disrespectful in language toward a first class petty officer on 940912, disrespectful in deportment toward a first class petty officer on 940912 and willfully disobey a lawful order from a first class petty officer on 940912), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
940920:  Applicant to medial for “temper problems” and “three disrespect chits.”
         Diagnosis:       Axis I: Alcohol Abuse
 Axis II: Personality Disorder NOS w/ Borderline and Anti-social features
Axis III: None
Axis IV: Severe
Axis V: 65/70
941101:  NJP for violation of UCMJ, Article 86: UA from 941016 – 941020. Award: Forfeiture of $500 per month for 1 month, restriction and extra duty for 21 days, reduction to E-3. No indication of appeal in the record.
941116:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
941116:  Applicant advised of his rights and having elected not to consult with counsel, elected to waive all rights.
941122:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

941208:  CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19950120 under other than honorable conditions for misconduct due to commission of a serious offense (A & B). The Board presumed regularity in the conduct of governmental affairs (C). 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 (D and E).

Issue 1. 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 nonjudicial punishment proceedings for three specifications of a violation of Article 91 and one violation of Article 86 of the UCMJ. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his failure to meet the requirements of his contract with the U.S. Navy. Relief is not warranted.

The Applicant contends that his problems in the Navy can be attributed to “stress [that] manifested itself while on duty.” While he may feel that his personal problems were the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

Concerning a change in reenlistment code & 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 or Marine Corps. Reenlistment policy of the naval service is promulgated by the Commander, Navy Recruiting Command, 5722 Integrity Drive, Bldg 784, Millington, TN. 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), Change 9, effective
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 91, insubordinate conduct, if adjudged at a Special or General Court-Martial.

C. 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.

D. 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.

E. 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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