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NAVY | DRB | 2004_Navy | ND04-01249

Original file (ND04-01249.rtf) Auto-classification: Denied

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

ex-SR, USNR
Docket No. ND04-01249

Applicant’s Request

The application for discharge review was received on 20040806. 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 20050107. 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:

“ SINCE MY DISCHARGE I HAVE WORKED WITH SEVERAL COMPANIES AND ONE THING I HAVEN’T FOUND IS THE BOND BETWEEN THE MEN OF THE ARMED FORCES AND THE HONOR IN SERVING THIS COUNTRY. I WISH TO RE-ENLIST INTO THE ARMED FORCES TO BUILD THESE BONDS AND SERVE MY COUNTRY PROUDLY.

I respectfully request a review of my records for your consideration. I have spoken with reserve components and wish to join their ranks. The experiences that I had in the Navy where very rewarding; in private sector traits such as honor, integrity and courage are all just seldomly used in stories. In the Armed forces these traits are what we live for. I wish to serve my country proudly with honor and reinstate myself with the pride that I once felt. I am also pursuing a law-enforcement career and want to be able to bring with me the traits that were instilled in me from the military.

When I served in the Navy, I was young and immature at the time. Little did I know that time really does mature you and give you experiences of responsibility. This is why I write you today; with more experience, maturity and education so that you may reconsider upgrading my reentry-code and discharge.

Respectfully submitted. ”

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Copy of Applicant’s DD Form 214
Copy of Letter of Commendation (2 copies), not dated
Copy of letter from Applicant, not signed, dtd November 29, 2004
Copy of 2 pages from National Guard Enlistment contract, 19 Oct 2004

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

         Inactive: None
         Active: None

Period of Service Under Review :

Date of Enlistment: 940527               Date of Discharge: 960909

Length of Service (years, months, days):

         Active: 01 11 28
         Inactive: 00 03 15

Age at Entry: 17                          Years Contracted: 8

Education Level: 11                        AFQT: 39

Highest Rate: SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: 2.00 (1)             Behavior: 1.00 (1)                OTA: 1.50

Military Decorations: None

Unit/Campaign/Service Awards: NDSM, LETTER OF COMMENDATION

Days of Unauthorized Absence: None

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 :

940912: Applicant ordered to Active Duty for 2 years this date.

950511: NJP for violation of UCMJ 128, assault on 95 May 10.
Award: Forfeiture of $100.00 pay per month for 1 month, restriction and extra duties for 20 days. No indication of appeal in the record.

960530: NJP held this date. [Extracted from Applicant’s Enlisted Performance Report].

960724: Reduction in Rank to E-2 suspended at CO’s NJP of 96 May 30 vacated this date due to continued misconduct.

960724: NJP for violation of UCMJ, Art 86(2 specs), 89, 90, 91 (2 specs), 92 (2 specs).
         Art 86 Spec 1: Failure to go on 96 Jul 20.
         Art 86 Spec 2: Went from appointed place of duty 96 Jul 23.
         Art 89: Disrespect toward commission officer on 96 Jul 23.
         Art 90: Disobeyed a lawful order from a commissioned officer on 96 Jul 23.
         Art 91 Spec 1 and Spec 2: Disrespect towards a Petty Officer on 96 Jul 11.
         Art 92 Spec 1 and Spec 2: Disobeyed a lawful order from a Petty Officer on 96 Jul 20.
         Award: Forfeiture of $$437.00 per month for 2 month(s), reduction to E-1, 3 days bread and water. No indication of appeal in the record.

960816: NJP held this date. [Extracted from Applicant’s Enlisted Performance Report].

960909: DD Form 214: Applicant discharged

Applicant’s discharge package missing from service record.



PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19960909 under other than honorable conditions by reason of misconduct due to a pattern of misconduct (A and B). 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 (C and D). The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (E).

Issue 1. 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.

Issue 2. T he Board has no authority to upgrade a discharge for the sole purpose of enhancing employment. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

Issue 3. The Applicant contends that his problems in the Navy can be attributed to his youth and immaturity. While he may feel that these factors 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.

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. T he Applicant’s service was marred by 4 nonjudicial punishment proceedings for violations of Articles 86 (2 specs), 89, 90, 91 (2 specs), 92 (2 specs) 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 NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, is considered. The applicant provided copies of his enlistment contract with the National Guard as documentation of his post-service. The applicant's efforts need to be more encompassing than those provided. For example, the applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities, in order for consideration for clemency based on post-service conduct. At this time, the applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge. Therefore, no relief will be granted.

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), 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 if adjudged at a Special or General Court-Martial.

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .

E. 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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NAVY | DRB | 2004_Navy | ND04-01249

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