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NAVY | DRB | 2004_Navy | ND04-01122
Original file (ND04-01122.rtf) Auto-classification: Denied


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

ex-ENFR, USN
Docket No. ND04-01122

Applicant’s Request
The application for discharge review was received on 20040625. The Applicant requests the characterization of service received at the time of discharge be changed to honorable or general/under honorable conditions. 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 20050616. 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. “Since being discharged from the U.S. Navy, I have been working very hard to overcome the turmoil and mistakes I have made. After reviewing all documents and paperwork, if you feel that I do not deserve an Honorable discharge, I most respectfully request that you take into consideration upgrading my discharge to a General Under Honorable conditions and also respectfully requesting you take into consideration changing my re-entry code so that I may have a second chance at serving my country again and leaving this bag of mistakes and regrets behind me. Before my poor decisions I was planning on making the military a career. I have never been more proud then when I was serving my country. I took what I had for granted and never realized how good I had it till I lost it. At this time I have completed enrollment for college and will be starting back in August to try to overcome this mess and leave behind the unwise choices and roads I chose. I respectfully request that you take these matters into consideration. Thank you for your time.

Sincerely,
[signed]
J_ R_ ( Applicant )”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Letter from J_, W_ and W_ R_ (undated)
Notarized statement of J_ B_ (Oct 06, ‘03)
Arrest and booking report (Oct 01, ‘03)
Letter from J_ B_ (Oct 27, ‘03)
Arrest and booking report (Oct 16, ‘03)
Order setting release on own (Nov 03, ‘03)
Plea of guilty and negotiated sentence (Nov 03, ‘03)
Montgomery G.I. Bill enrollment from (Nov 22, ‘00)
Letter from W_ R_ (undated)
Conner’s State College enrollment certification (Jul 23, ‘04)
Pittsburg County Sheriff background check (Jul 23, ‘04)
Termination of probation (Jun 08, ‘04)
Certification of completion (Jun 07, ‘04)

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     001107 - 020822  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 001120               Date of Discharge: 001119

 Length of Service (years, months, days):

         Active: 03 01 13
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 42

 Highest Rate: ENFN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF*                 Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: None

*No marks found in service record.

 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 :

001120:  Active duty begins.

010601:  Applicant reports aboard USS Simpson (FFG-56).

020920:  NJP for violation of UCMJ, Article 92: Dereliction in the performance of duties and failure to obey an order or regulation, violation of UCMJ, Article 86: Failure to report to appointed place of duty.
         Award: Forfeiture of $676 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. Reduction suspended for 6 months. No indication of appeal in the record.
021217:  NJP. No further information found in service record. [Extracted from NAVPERS 1070/604.]

030331:  Applicant admitted to Substance Abuse and Rehabilitation Program. Multiple alcohol incidents in a six month period.

030415:  Applicant discharge from Substance Abuse and Rehabilitation Program with a diagnosis of alcohol abuse.

Unreadable:      Commander, Naval Surface Group TWO directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

040102:  Applicant discharged.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040102 under other than honorable conditions 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: Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety or inequity 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 two nonjudicial punishment proceedings for violations of UCMJ Article’s 86 (failure to report to appointed place of duty) and 92 (dereliction in the performance of duties and failure to obey an order) and two civilian arrests for battery and domestic assault, thus substantiating the misconduct for which he was separated. 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 educational or employment opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. The Applicant’s issue is without merit. 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’s issue is without merit. Relief denied.

There is no law or regulation, which provides that an unfavorable discharge may be upgraded, based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. The Applicant provided certification of completion of 26 weeks of batterers treatment, termination of probation, local police background check and college enrollment certification, however this was considered insufficient documentation to mitigate the Applicant’s misconduct. Relief denied.

In the absence of a complete discharge package, the Board presumed regularity of governmental affairs. Therefore, the Board presumed the Applicant’s discharge to have been conducted in accordance with that described in reference “A”. Proper convening authority directed the Applicant’s discharge and referred to the discharge package. If the Applicant feels his discharge was administratively flawed he bears the burden of establishing his issues through the presentation of substantial and credible evidence. 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 remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time. 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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