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NAVY | DRB | 2005_Navy | ND0500673
Original file (ND0500673.rtf) Auto-classification: Denied


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

ex-SA, USN
Docket No. ND05-00673

Applicant’s Request
The application for discharge review was received on 20050309. 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 20050727. 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: GENERAL (UNDER 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:

“I feel that a RE-4 is too harsh of judgment. This code has denied me from re-enlisting into the Navy on numerous occasions.

Also there are two issues I wish to accomplish with this form.

1. To have discharge changed to Honorable, if possible.
2. Change of RE code to allow reenlisted or allow waiver of RE code.

There was no pattern of misconduct.”

Applicant’s Remarks: “I have matured and been an upstanding citizen. I would want to serve my country and continue a legacy for my children.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Service Related Documents (43 pgs)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     960619 - 960917  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 960918               Date of Discharge: 980615

 Length of Service (years, months, days):

         Active: 01 08 02
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

Education Level: 12                        AFQT: 39

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NA*                  Behavior: NA*             OTA: NA*

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 26

*Not available.

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

GENERAL (UNDER HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

 Chronological Listing of Significant Service Events :

970602:  Retention Warning: Advised of deficiency (Misconduct due to unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

970609:  NJP for violation of UCMJ, Article 86: Unauthorized absence.
         Award: Forfeiture of $50.00 pay per month for 1 month. No indication of appeal in the record.
980407:  Applicant on authorized absence as of 0600, 980407.

 980407:  Applicant missed sailing of USS CHANCELLROSVILLE (CG-62) from pier 7 Naval Station San Diego, CA as of 0600, 980407.

980503:  Applicant surrendered onboard USS CHANCELLROSVILLE (CG-62) at pier 8 NAVSTA San Diego, CA.

980528:  NJP for violation of UCMJ, Article 86: Absence without leave; violation of UCMJ, Article 87: Missing movement through neglect.
         Award: Reduction to E-2. No indication of appeal in the record.
980601:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service general (under honorable conditions) by reason of misconduct due to a pattern of misconduct.
980601:  Applicant advised of rights and having elected not to consult with qualified counsel under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
980612:  Commanding Officer reported directing the Applicant’s general (under honorable conditions) discharge by reason of misconduct due to a pattern of misconduct as evidenced by two punishments under the Uniform Code of Military Justice.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19980615 with a general (under honorable conditions) characterization for misconduct due to a pattern of misconduct (A). 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 (B and C).

 The Applicant contends that “there was no pattern of misconduct.” Reference (A) indicates that a member may be processed for misconduct due to a pattern of misconduct when the member has two or more nonjudicial punishments in the same enlistment after violating a retention warning. The Applicant received a retention warning and was subject to a nonjudicial punishment proceeding for a violation of Article 86 of the UCMJ on 19970602. The Applicant subsequently was in an unauthorized absence status and missed movement on 19980407. After returning from 26 days of unauthorized absence, the Applicant was subject to a second nonjudicial punishment proceeding on 19980528 for his violations of Article 86 and 87 of the UCMJ thus substantiating the misconduct for which he was separated. A general 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 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 contends that he has matured and has “been an upstanding citizen.” 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 relevant 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 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 V, Para 502, Propriety .

 C. 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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