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NAVY | DRB | 2005_Navy | ND0500202
Original file (ND0500202.rtf) Auto-classification: Denied


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

ex-SA, USNR
Docket No. ND05-00202

Applicant’s Request
The application for discharge review was received on 20041110. 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 20050201. 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. “Member is unable to be a productive citizen with discharge. I want to possibly return to military or go back to school to further my education. I would like to get my life back in order with a good education and better job with benefits.

While stationed aboard the USS Kid I was a fireman. I was striking for a ships service man my supervisor, GSM1 L_, while trying to fill a billet for fireman which was way under staffed on ship requested that I take the test GSM3. He signed off the quals and took a test for GSM3 on my behalf without my approval – After he answered all of the questions on the test he wanted me to sign my name. I refused to be a party to it. The documents would have been falsified. I refused. I would not sign the paper – it was wrong. He seemed to have it in for me from then on. Things went down hill. All efforts by me were heard by deaf ears. I was ultimately transferred to the USS Thorn. While stationed onboard the USS Thorn my family were victims in the flood in Elba, Al. in 1998. Two family members drowned as a result of the flood. Two other cousins also passed away at this time. We had 4 funerals within 3 weeks of each other. I left to attend the funerals of my cousins – I feel that my AWOL was something I had to do. When I returned to the ship I was discharged in OCT. 1998.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (2)
Letter of Eligibility from Department of Veterans Affairs

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: 960326               Date of Discharge: 981103

 Length of Service (years, months, days):

         Active: 02 06 28
         Inactive: 00 00 20

 Age at Entry: 19                          Years Contracted: 8

 Education Level: 12                        AFQT: 31

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA*                 Behavior: NMA             OTA: NMA

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 158

*No Marks made available for review

 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 :

960415:  Commenced 36 months of active duty under the FN Apprenticeship program.


970603:  NJP for violation of UCMJ, Article 86: Unauthorized absence.
         Award: Forfeiture of $500.00 pay per month for 2 months, (suspend $350.00 for 2 months). No indication of appeal in the record.

970603:  Retention Warning: Advised of deficiency (Violation of UCMJ, Article 86-Unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

970625:  Retention Warning: Advised of deficiency (Violation of UCMJ, Article 86-Unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

970625:  Punishment of forfeiture of $350.00 x 2 months suspended at CO’s NJP of 970603 vacated this date due to continued misconduct.

970626:  NJP for violation of UCMJ, Article 86: Unauthorized absence.
         Award: Vacation of forfeiture of $500.00 pay per month for 2 months, (suspension of $350.00 for 2 months), restriction and extra duty for 15 days. No indication of appeal in the record.

980213:  NJP for violation of UCMJ, Article 86: Unauthorized absence; violation of UCMJ, Article 92: Dereliction of duties.
         Award: $100.00 fine, extra duty for 5 days. No indication of appeal in the record.

980609:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 980531 having been an unauthorized absentee since 2030, 980501 from USS THORN (DD-988).

981013:  NJP for violation of UCMJ, Article 86: Unauthorized absence.
         Award: Forfeiture of $519.15 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.

981013:  Applicant notified of intended recommendation for discharge with a least favorable characterization of under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct.

981013:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ, Article 27(b), elected to waive all rights.

981016:  Report of Return of Deserter. Applicant surrendered to military authorities on 981006 (2247) onboard USS THORN (DD-988) at Portsmouth, VA. Returned to military control 981006 (2247). Retained onboard for disciplinary action.
981019:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.

981028:  Commander, Naval Surface Force, U.S Atlantic Fleet 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 19981103 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: The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy. 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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities as requested in the issue. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident during the Applicant’s enlistment. Relief not warranted.

The Applicant contends his disciplinary problems were the result of stress caused by the death of his family members. The Board recognizes that serving in the U.S. Navy is challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. It must be noted that most members of the Navy serve honorably and therefore earn their honorable discharges. In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. The Board found that the Applicant's service was equitably characterized. Relief denied.

In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. Specifically, the Applicant alleged that GSM1 L_ “seemed to have it in for me”. The record, however, contains no evidence of any wrongdoing by the government in the discharge processing. The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. As such, this Board presumed that the Applicant’s discharge was regular in all respects. Relief denied.

 A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor. The Applicant’s service was marred by award of four nonjudicial punishment (NJP) proceedings for violations of Article 86 (Unauthorized absences) of the UCMJ, totaling 158 days, and Article 92 (Dereliction of Duty). Additionally, the Applicant was given two adverse counseling entries. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable or under honorable (general) characterization of service. Relief denied.

 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 18, effective
12 Dec 1997 until 21 Aug 2002, 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 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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