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NAVY | DRB | 2005_Navy | ND0500121
Original file (ND0500121.rtf) Auto-classification: Denied


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

ex-MSSA, USN
Docket No. ND05-00121

Applicant’s Request
The application for discharge review was received on 20041029. 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 20050118. 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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

1. “Dear Sirs, I am requesting this action because I wish to re-enlist for active duty. At the time of my separation I was angry and bitter, with the passage of time I find myself regretting the decision to leave the Navy. It was my own decision to leave, and I wish to rectify my earlier error and continue to do my sworn duty. Thank you for your time.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     930128 - 930315  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 930316               Date of Discharge: 941221

 Length of Service (years, months, days):

         Active: 01 06 03 (Does not include lost time)
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4 (12 months extension)

 Education Level: 12                        AFQT: 81

 Highest Rate: MSSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.4 (2)              Behavior: 3.4 (2)                 OTA: 3.4

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR, SWAS

 Days of Unauthorized Absence: 35

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

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

 Chronological Listing of Significant Service Events :

930317:  Retention Warning: Advised of deficiency (Defective enlistment and induction due to fraudulent entry as evidenced by failure to disclose preservice civil involvement, criminal trespassing charge), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

940922:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 940708 to 940719 and from 940720 to 940805.
         Award: Forfeiture of $466.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.

940922:  Retention Warning from USS AMERICA (CV 66): Advised of deficiency (Misconduct as evidenced Commanding Officer’s Nonjudicial Punishment on 940922 for VUCMJ 86, UA from 940708 to 940719 and UA from 940720 to 940805), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

941003:  NJP for violation of UCMJ, Article 86: Unauthorized absence from place of duty on 940926.
         Award: Confinement on bread and water for 3 days. No indication of appeal in the record.
941009:  NJP for violation of UCMJ, Article 86: Unauthorized absence from appointed place of duty on 940929, 941001, and 941002.
Award: Confinement on bread and water for 3 days. No indication of appeal in the record.
941209:  USS AMERICA (CV 66) notified Applicant of intended recommendation for discharge with a least favorable characterization of under other than honorable conditions by reason of convenience of the government on the basis of personality disorder and misconduct due to a pattern of misconduct as evidenced by your psychiatric evaluation of 940825 and all nonjudicial punishments under the UCMJ in your current enlistment.
941209:  Applicant advised of 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. The Applicant did not object to the separation.

941214:  Commanding Officer recommended discharge under other than honorable conditions by reason of convenience of the government on the basis of a personality disorder and by reason of misconduct due to a pattern of misconduct.

941221:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19941221 under other than honorable conditions for misconduct due to a pattern of misconduct (A). The Board presumed regularity in the conduct of governmental affairs (B). 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 (C and D).

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. 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 three nonjudicial punishment proceedings for multiple violations of UCMJ Article 86 unauthorized absence totaling 35 days of lost time. 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. Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service. Relief is not warranted.

 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. 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 – A PATTERN OF MISCONDUCT.

B. 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.

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 .

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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