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NAVY | DRB | 2005_Navy | ND0500776
Original file (ND0500776.rtf) Auto-classification: Denied


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

ex-AOAR, USN
Docket No. ND05-00776

Applicant’s Request
The application for discharge review was received on 20050330. 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 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 20050811. 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:

“I WANT TO REENLIST, TO SERVE MY COUNTRY, I WAS YOUNG AND IMATURE AND MADE MISTAKES. I BELIEVE I CAN BE AN ASSET TO THE MILITARY AND THE ARMED FORCES.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 1 copy)
Applicant’s DD Form 214 (Member 4 copy)


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     001222 - 010225  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 010226               Date of Discharge: 021223

 Length of Service (years, months, days):

         Active: 01 09 28
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 50

 Highest Rate: AOAA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.0 (1)              Behavior: 2.0 (1)                 OTA: 2.50

 Military Decorations: None

 Unit/Campaign/Service Awards: National Defense Service Medal, Sea Service Deployment Ribbon

 Days of Unauthorized Absence: None

 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 :

021017:  NJP for violation of UCMJ, Article 134 (2 specs):
         Specification 1: AOAN B_ J. R_ (Applicant) did, on or about September 2002, wrongfully use, with intent to deceive, a military identification card, that he knew to be false.
         Specification 2: AOAN B_ J. R_ (Applicant) did, on or about September 2002, wrongfully possess, with intent to deceive, a military identification card that he knew to be unauthorized.
         Award: Restriction and extra duties for 30 days, forfeiture of $577.00 pay per month for 2 months (suspended for 6 months), and reduction to E-2 (suspended for 6 months). No indication of appeal in the record.
021017:  Retention Warning: Advised of deficiency (CO’s NJP for violation of the UCMJ, Article 134 (2 specs): possessing and using a false unauthorized military identification card). Notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

021108:  Punishment of reduction in rate to AOAA suspended at CO’s NJP of 021017 vacated this date due to continued misconduct.
021108:  NJP for violation of UCMJ, Article 86 (7 specs):
Specification 1: AOAN B_ J. R_ (Applicant) did, at or about 0630 on 021024, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: restricted personnel muster.
Specification 2: AOAN B_ J. R_ (Applicant) did, at or about 0630 on 021026, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: restricted personnel muster.
Specification 3: AOAN B_ J. R_ (Applicant) did, at or about 1800 on 021026, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: extra duty personnel muster.
Specification 4: AOAN B_ J. R_ (Applicant) did, at or about 1800 on 021029, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: extra duty personnel muster.
Specification 5: AOAN B_ J. R_ (Applicant) did, at or about 2100 on 021030, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: restricted personnel muster.
Specification 6: AOAN B_ J. R_ (Applicant) did, at or about 2100 on 021031, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: restricted personnel muster.
Specification 7: AOAN B_ J. R_ (Applicant) did, at or about 1800 on 021105, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: extra duty personnel muster.
         Award: Confinement on bread and water for 3 days.
021127:  NJP for violation of UCMJ, Article 86:
 Specification: AOAN B_ J. R_ (Applicant) did, at or about 1115 on 021119, without authority, fail to go at the time prescribed to his appointed place of duty aboard USS JOHN F. KENNEDY (CV 67).

Violation of UCMJ Article 90:
Specification: AOAN B_ J. R_ (Applicant), on or about 021119, having received a lawful command from Commander J_ I. J-R_, his superior commissioned officer, to not leave the ship before 1500 without permission, or words to that effect, did, on board USS JOHN F. KENNEDY (CV 67), willfully disobey the same.
Award: Restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
021212:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service possible is under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct.
021212:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights, except the right to submit a statement to the separation authority (in lieu of an administrative discharge board).

021213:  Applicant submits statement to the separation authority.
021219:  Commanding Officer, USS JOHN F. KENNEDY (CV 67), recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and commission of a serious offense. Commanding Officer’s comments: "Aviation Ordnanceman Airman Recruit R_ (Applicant) has demonstrated a fundamental lack of military bearing during his tour aboard USS JOHN F. KENNEDY. AOAR R_'s (Applicant)’s initial offenses involved the fraudulent possession and use of another servicemember’s military ID card, a serious offense committed during our ongoing war on terrorism. Following his first nonjudicial punishment on 17 October 2002, AOAR R_ (Applicant) signed a NAVPERS 1070/613 indicating he was aware of the consequences of repeated disciplinary infractions. He was awarded a second nonjudicial punishment less than a month later for failing to appear at numerous restricted musters. Most recently, AOAR R_ (Applicant) again appeared before me at nonjudicial punishment for failing to return to the ship after his divisional PRT and for violating a direct order given him by his department head, the KENNEDY Weapons Officer. His behavior demonstrates a complete lack of respect for good order and discipline and a disregard for Naval regulations. AOAR R_'s (Applicant)’s presence adversely affects the morale and work performance of his shipmates. Accordingly, I strongly recommend AOAR R_ (Applicant) be separated from the Naval Service under Other Than Honorable conditions due to a pattern of misconduct and commission of a serious offense."

021223:  Commander, Carrier Group SIX authorized 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 20021223 under other than honorable conditions 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 he was young and immature at the time of his service and infers that this lack of maturity should mitigate his misconduct. While the Applicant may feel that this is a mitigating factor, the Board found that the record clearly shows the Applicant was responsible for his actions and willfully and/or negligently committed violations of the Uniform Code of Military Justice (UCMJ). The Applicant's misconduct is clearly documented in his service record by the following:
o        nonjudicial punishment (NJP) on 20 021017 for violation of UCMJ Article 134 False or unauthorized pass offense (2 specifications);
o        NJP on 20 021108 for violation of UCMJ Article 86 Unauthorized absence
(7 specifications);
o        NJP on 20 021127 for violations of UCMJ Articles 86 Unauthorized absence and 90 Willfully disobeying lawful order;
o        vacating, on 20 021108 , of suspended portion of NJP (reduction) awarded on 20021017, for continued misconduct;
o        a retention warning on 20 021017 for continued deficiencies in performance and conduct.
While the Applicant may feel that there were mitigating factors to his misconduct, the record does not contain, nor did t he Applicant provide, any evidence to suggest that he was not responsible, or should not be held accountable, for his misconduct. Relief on this basis is therefore denied.

The following is provided for the edification of the Applicant. 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. The Applicant is further advised that there is no law or regulation, which provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the Navy. 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. The Applicant has not provided any post-service documentation for the Board to consider relief on this basis.

The Applicant states that he wishes to reenlist in order to again serve his country. The Board recognizes the Applicant's motivation but advises him that that the NDRB has no jurisdiction over reenlistment into the Navy or any other branch of service. An unfavorable characterization of service and/or reenlistment 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. 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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