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NAVY | DRB | 2005_Navy | ND0500564
Original file (ND0500564.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-MMFA, USN
Docket No. ND05-00564

Applicant’s Request
The application for discharge review was received on 20050214. The Applicant requests the Discharge 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050831. After a thorough review of the available 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 and reason for discharge shall not change. The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to a pattern of misconduct .

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated
 Applicant’s issues, as stated on attached document/letter:

“To the members of the Naval Council,

Honor. Courage. Commitment. These codes taught to me over two years ago still play vital roles in my life today. This written testimony of peers, and myself sits in front of you today in hopes that reversal of my military code and reinstatement into the Navy may be granted. I speak on behalf of myself, not to justify what I did was right, but to correct the decision that I made when I was in the Navy. If the Council will provide a reversal code, my prior knowledge and experience gained, will prove to be a high asset. As you review my records and prepare to make a decision, I simply ask that you look past my immature behavior. Nothing else can be said for it other then the fact that I had taken my chance for granted. The most difficult for me today, is that I know without a doubt I can be one of the Navy’s best and brightest, and not have the opportunity to show all the those that said I can’t do it, that I can. Some may call it arrogance, and others selfishness, but I call it pride. Pride that was to make your shoulders square, to walk tall with confidence, and pride that was taught to me in basic over four years ago. So I ask that the Council to grant me the one and only thing that has eluded me for four years, the chance to show my pride for my country, family, and myself. The letters attached are in written testimony verifying the employment in the same field as when I was in the Navy, and also from those that have known my goals and drive for what I have strived for. And finally I would like to thank you for your time in review and I know that with the changes in myself, a positive response will soon be reached and the Navy will see first hand that I have more then a fire, more then a strive, but chance to serve my country as I was intended to, with pride.

 Thank you and God Bless,
[signed]W_ F. M_ (Applicant)
MFFN W_ F. M_”
Applicant’s Remarks: “Included is originals of testimony’s and also a letter from the Captain o f the USS LASALLE during my enlistment.”

 Documentation
 In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
 Ltr of Recommendation from F_ M. L_, III dtd January 21, 2005
Employment Reference Letter dtd January 4, 2005
Ltr of Recommendation from K_ M_, Principal New Castle Christian Academy, undated
Certificate of Completion (Machinist Mate “A” School) dtd March 29, 2002
Page 13 entry for one week Academic Capacity Enhancement program dtd 010720
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20010720 – 20011021      COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20011022             Date of Discharge: 20030214

 Length of Service (years, months, days):

         Active: 01 03 23 (Does not exclude lost time)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 04
         Confinement:              none

 Age at Entry: 18

Years Contracted: 4

Education Level: 10                                 AFQT: 57

 Highest Rate: MMFA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.0 (1)     Behavior: 1.0 (1)        OTA: 1 .67

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal


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

UNDER OTHER THAN HONORABLE CONDITIONS/ PATTERN OF MISCONDUCT, authority: MILPERSMAN, Article 1910-140 (formerly 3630600).
Chronological Listing of Significant Service Events :

020829:  NJP for violation of UCMJ, Article 86: Absence without leave.
 Violation of UCMJ, Article 92: Failure to obey order or regulation.
         Award: Restriction for 21 days, extra duty for 30 days, reduction in rate (suspended for 6 months). No indication of appeal in the record.

021009:  Punishment of reduction in pay grade awarded at NJP on 020829 vacated due to continued misconduct.

021009:  NJP for violation of UCMJ, Article 86: Absence without leave.
         Award: 60 days restriction, forfeiture of $644.65 pay per month for 1 month. No indication of appeal in the record.

030109:  NJP for violation of UCMJ, Article 86 (2 specs):
         Specification 1: In that Machinist Mate Fireman W_ F. M_, USN, USS LA SALLE (AGF 3), on board USS LA SALLE, on or about 1 Jan 2003, without authority, absent himself from his unit of duty at which he was required to be, to wit: USS LA SALLE (AGF 3), located at Gaeta, Italy and did remain so absent until on or about 4 Jan 2003.
         Specification 2: In that Machinist Mate Fireman W_ F. M_, USN, USS LA SALLE (AGF 3), on board USS LA SALLE, on or about 4 Jan 2003, without authority fail to go at the time prescribed his appointed place of duty to wit: S-2 Division Mess Decks.
          Award: Forfeiture of ½ pay per month for 2 months (suspended for 6 months). No indication of appeal in the record

030109:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service under other than honorable conditions by reason of misconduct pattern of misconduct.
030109:  Applicant advised of rights and having elected not to consult with counsel elected to waive all rights.
030115:  COMFAIRMED NAPLES IT directed the Applicant's discharge under other than honorable conditions by reason of misconduct pattern of misconduct.

Service Record contains a partial Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030214 by reason of misconduct due to a pattern of misconduct (A and B) with a service characterization of under other than honorable conditions. 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).

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. The Applicant’s service was marred by three nonjudicial punishment proceedings for violations of Articles 86 and 92 of the UCMJ. Violations of Article 92 of the UCMJ are considered serious offenses. 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 Applicant requests that the Board look beyond his immature behabvior in considering an upgrade. While he may feel that his immaturity was 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.

Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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 sufficient post-service documentation for the Board to consider. 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. 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 2002 until Present, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

B. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 92, failure to obey an order/regulation.

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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