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NAVY | DRB | 2004_Navy | ND04-01187
Original file (ND04-01187.rtf) Auto-classification: Denied


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

ex-PCSN, USN
Docket No. ND04-01187

Applicant’s Request
The application for discharge review was received on 20040719. The Applicant requests the characterization of service received at the time of discharge be changed to general (under honorable conditions). The Applicant requests a documentary record review. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20041122. 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 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “I am writing this board to respectfully request a second opportunity to serve my country. The first opportunity I had I did not understand what serving my country was all about, nor did I understand how important of a role I played in my countries ability to protect the world and it’s self.
I wish I could take back the actions which led to the end of my military career. I have relived these course of actions over and over in my mind, as if it was a bad dream that I can not awaken from. Looking back, I now see that there were many different avenues I could have utilized. I deeply regret my lack of good bearing and lack of good judgment. I now realize that I did not conduct myself like a professional nor as someone who represents the United States Navy and the United States of America should conduct themselves. Further more, I have also learned that while serving in the United States Navy I am not just a sailor but, also an ambassador of the United States Navy and the United States of America.

I entered the United States Navy on 1999 May 11 to fulfill a childhood dream of mine. As a child I had several family members who had served in the United States Armed Forces. They often told me how great it is to serve our country. They told me that there was no better joy in life then the joy you get from doing a job and doing it right. After I was discharge, I went home and spoke to my family. They told me and explained to me that I should do everything possible to make things right. After talking to my family I now have a better focus in life. I have resolved all my personal matters which contributed to the end of my military career.

Since my discharge I grown tremendously as a person. I have abided by all laws, municipal, state, and federal. I am involved in a church and I’m also a youth mentor in hopes of helping them become a better person so that, they can one day be a productive member of our society and our country.

I have remained gainfully employed and a modled employee at my place’s of employment. I have completed 2 ½ years of College, and I am presently enrolled in school. I am studying to obtain my Bachelor’s degree in Criminology. I contribute this to the discipline and the ethical values the United States Navy has instilled in me.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
The Applicant did not submit any additional documentation for the Board to consider while reviewing his case.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     990430 - 990510  COG
         Active:                            None

 Period of Service Under Review :
Date of Enlistment: 990511               Date of Discharge: 030131

 Length of Service (years, months, days):

         Active: 03 06 20 (Does not include lost time)
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4

 Education Level: 14                        AFQT: 31

 Highest Rate: PCSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF*                 Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: NER, SSDR, MUC, AFEM, NDSM

 Days of Unauthorized Absence: 31

*No marks found in service record

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

 Chronological Listing of Significant Service Events :

020321:  NJP for violation of UCMJ, Article 92: Failure to obey a lawful written order.
         Award: Restriction and extra duty for 45 days, reduction to E-2 (reduction suspended for 6 months). No indication of appeal in the record.

020322:  Retention Warning: Advised of deficiency (Failure to pay just debts and CO’s NJP of March 21, 2002 for VUCMJ Article 92, Failure to obey a lawful written order, to wit: violating REAGANINST 11103.1 regarding residents/ visitors hours), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
021126:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 020923 to 021024.
         Award: Forfeiture of ½ month’s pay per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
021129:  NJP for violation of UCMJ, Article 91: Contempt or disrespect to superior noncommissioned or petty officer.
         Award: Correctional Custody for 70 days, reduction in rank to E-2 (correctional custody mitigated to 30 days restriction on 021209, reduction suspended 6 months).
021203:  Applicant notified of intended recommendation for discharge with a least favorable characterization of under other than honorable conditions by reason of misconduct due to the commission of a serious offense and by reason of misconduct due to patter of misconduct.
021203:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation and to submit a statement to the Separation Authority.
021223:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and by reason of misconduct due to pattern of misconduct.

030127:  COMNAVAIRLANT 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 20030131 under other than honorable conditions for misconduct due to commission of a serious offense (A and 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: Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question. No such impropriety or inequity is evident during the Applicant’s enlistment. 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, however, 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. As of this time, the Applicant has not provided any documentation for the Board to consider. 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. 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 02 until Present, Article 1910-142 [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B. In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 86, for unauthorized absence for a period in excess of 30 days, 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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