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NAVY | DRB | 2005_Navy | ND0500297
Original file (ND0500297.rtf) Auto-classification: Denied


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

ex-AOAR, USN
Docket No. ND05-00297

Applicant’s Request
The application for discharge review was received on 20041130. 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 20050428. 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. “I AOAR C_ S. N_ (Applicant) does request to have my discharge up graded to General Under Honorable Conditions, from Other Than Honorable (OTH). During my Service time I admit that I was young and foolish at that time in my life. But after Seven (7) years of thinking, Marriage and four children I see life at a total knew meaning. I since my discharge continued to work around military personnel continued my education at Orangeburg Calhoun Technical College. Upon watching the war on terror and my fellow Americans, Over Seas in Various bases around the world I would like to continue my military career. I’ve gone to the Navy recruiter in Charleston, SC. He replied once I have an upgrade on my Separation that I would be eligible for re-enlisting in the armed services again. I’ve also talked with the S. C National Guard and there is a need for my (MOS) in the Army and Navy. My (MOS) in the Navy was Aviation Ordananceman. (AO). I’ve always continued to study my class books, General Orders, and the reason for military service. I’m Requesting to day to have the consideration of the Board to grant me the upgrade in Service plus re-entry code, and benefits for my family and I.
I thank all members of the board for there time in this matter.

Respectfully, AOAR C_ N_ (Applicant)”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     950728 - 951127  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 951128               Date of Discharge: 970417

 Length of Service (years, months, days):

         Active: 01 04 20
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: GED              AFQT: 37

 Highest Rate: AOAA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF*                 Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: None

*No marks found in Applicant’s service record.

 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 :

960912:  NJP for violation of UCMJ, Article 91 (2 Specs.)
 Specification 1: Having received a lawful order from an E-5, to not walk on a stripped deck in Bay 6, located on the mess decks on board USS JOHN F. KENNEDY, an order which it was his duty to obey, did, on board USS JOHN F. KENNEDY, at sea, on or about 7 September 1996, willfully disobey the same.
Specification 2: On board USS JOHN F. KENNEDY, at sea, on or about 7 September 1996, did treat with disrespectful in language and deportment toward an E-5, who was then in the execution of his office, by saying words of belittlement and flaring his arms to aggravate him; violation of UCMJ, Article 128: Did, on or about 12 September 1996, unlawfully burn an E-2 with hot water from a coffee pot, thereby causing 1 st and 2 nd degree burns to the chest, left side, and left upper arm.
         Award: Forfeiture of $437.00 per month for 2 months, restriction and extra duty for 45 days. 15 days of restriction, 15 days of extra duties, and the forfeiture of $437.00 pay per month for 1 month suspended for 6 months.

960913:  Retention Warning: Advised of deficiency (Misconduct as evidenced by your NJP on 960912, for violations of the UCMJ, Articles 91 (2 Specs) and 128: Failed to obey a lawful order and disrespectful in language and deportment towards a petty officer second class and unlawfully burn an E-2 on the body, with hot water from a coffee pot, thereby causing first and second degree burns to his chest, left side, and left upper arm.) , notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

970212:  CO’s NJP held on 970912 of 15 days restriction, 15 days of extra duties, and a forfeiture of $437.00 pay per month for 1 month vacated due to further misconduct.
970212:  NJP for violation of UCMJ, Article 107 (2 Specs):
 Specification 1: Did, on or about 23 January 1997, with intent to deceive, make to an E-4, a false official statement.
Specification 2: Did, on or about 31 January 1997, with intent to deceive, make to an E-4, a false official statement:
Violation of UCMJ, Article 134 (3 Specs):
Specification 1: Did, on or about 23 December 1996, wrongfully and without authority wear upon his uniform, a dungaree shirt, a third class petty officer’s crow.
Specification 2: Did, on or about 23 January 1997, wrongfully and without authority wear upon his uniform, a utility jacket, a third class petty officer’s collar device.
Specification 3: Did, on or about 31 January 1997, wrongfully and without authority, wear upon his uniform, a utility jacket, a third class petty officer’s collar device.
         Award: Restriction and extra duty for 30 days, reduction to E-1. Reduction in rate suspended for 6 months.

970322:  Punishment, of reduction in rate to AOAR suspended at CO’s at NJP of 12 February 1997 vacated this date due to continued misconduct.

970322:  NJP for violation of UCMJ, Article 92: Was, on or about 10 March 1997; derelict in the performance of his duties in that he willfully failed to complete his PMS checks; violation of UCMJ, Article 107: Did, on or about 10 March 1997 through 16 March 1997, with intent to deceive, sign an official record, to wit: Weekly PMS schedule, which record was totally false; violation of UCMJ, Article 134: Did, on or about 31January 1997, make and utter to an Airman a certain check, a debt, and did thereafter dishonorably fail to maintain sufficient funds for payment of such check in full upon its presentment for payment.
Award: Restriction and extra duty for 45 days.
970331:  Applicant notified of intended recommendation for discharge with a least favorable characterization of service possible under other than honorable conditions by reason of misconduct due to commission of serious offenses and misconduct due to pattern of misconduct as evidenced by all punishments received under the UCMJ during current enlistment.
970331:  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

970407:  Commanding Officer, USS JOHN F. KENNEDY, recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct.

970415:  COMCARGRU TWO 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 19970417 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 multiple orders violations, disrespect, false official statements, impersonating a petty officer, and bad check offenses. This misconduct resulted in three separate nonjudicial punishment proceedings for violations of UCMJ Articles 91, 92, 107, and 134. 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.

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. 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, Change 14, effective 03 Oct 96 until 11 Dec 97), 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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