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NAVY | DRB | 2005_Navy | ND0500816
Original file (ND0500816.rtf) Auto-classification: Denied


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

ex-MMFR, USN
Docket No. ND05-00816

Applicant’s Request
The application for discharge review was received on 20050407. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and the Narrative Reason for Separation be changed to “Recode.” The Applicant requests a documentary record discharge review. The Applicant designated American Legion as the representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20051027. 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 and reason for discharge shall not change. The discharge shall remain General (Under 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 the application:

“Would like to request an upgrading of discharge and change the RE4 code. This request is being made in order to get back into the service. I realize that I would make a good sailor and the things I did before were immature.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20011025 - 20020730      COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20020731             Date of Discharge: 20040220

 Length of Service (years, months, days):

         Active: 01 06 20 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence:    7 days
         Confinement:                       None

 Age at Entry: 18

Years Contracted: 4 (24 month extension)

 Education Level: 12                                 AFQT: 69

 Highest Rate: MMFN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NOB                  Behavior: 1.00 (1)                OTA : 2 .33

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):

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

021115:  Applicant to unauthorized absence at 0015 on 021115.

 021117:  Applicant from unauthorized absence at 0845 on 021117 (2 days/surrendered).
021204:  NJP for violation of UCMJ, Article 86: Absence from appointed place of duty for 2 days
         Violation of UCMJ, Article 92: (2 Specifications), failure to obey a lawful order by exceeding curfew and driving during Phase One.
 Award: Reduction in rate (suspended for 6 months), forfeiture of $100 per month for 2 months, restriction for 20 days, and an oral reprimand. No indication of appeal in the record.
021204:  Retention Warning: Advised of deficiency (Commanding Officer’s NJP imposed on 04 December 2002, violation of the UCMJ, Article 86 (Unauthorized Absence) and Violation of the UCMJ, Article 92 (Failure to Obey a Lawful Order) (Exceeding Curfew and Driving a Vehicle during Phase I NMT), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
030115:  Reduction in pay grade awarded at NJP on 021204 vacated due to continued misconduct.
030116:  NJP for violation of UCMJ, Article 86: Absent from appointed place of duty.
         Violation of UCMJ, Article 92: Failure to obey a lawful order by driving during Phase One.
 Violation of UCMJ, Article 107: False official statement.
         Award: Reduction in rate, forfeiture of $200 per month for 2 months, 30 days correctional custody unit, and an oral reprimand. No indication of appeal in the record.

030730:  NJP for violation of UCMJ, Article 92: Failure to obey a lawful order by entering a female barracks wing and entering the barracks room of a female student.
         Award: Forfeiture of $250 per month for 2 months, restriction for 30 days, and an oral admonition. No indication of appeal in the record.
040123:  Applicant to unauthorized absence at 2030 on 040123.

 040128:  Applicant from unauthorized absence at 0700 on 040128 (5 days/surrendered).
040202:  NJP for violation of UCMJ, Article 86: (2 Specifications).
 Specification 1: In that MMFA J_ L. W_ (Applicant), USN, NPTU, on duty, on or about 040122 UA from NPTU 0400-2130.
Specification 2: Member UA from NPTU 2030 040123 until 0700, 040128.
Award: Oral reprimand, reduction to E-1. No indication of appeal in the record.
040203:  Applicant notified of intended recommendation for discharge by reason of misconduct pattern of misconduct and misconduct commission of a serious offense. Applicant notified that the least favorable characterization of service possible is general (under honorable conditions).
040203:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
040217:  Commanding Officer, Naval Nuclear Power Training Unit, Charleston, directed the Applicant's discharge with a general (under honorable conditions) by reason of pattern of misconduct and a commission of a serious offense

040217:  Commanding Officer, Naval Nuclear Power Training Unit, forwarded the administrative discharge package to CNPC. Commanding Officer’s comments: “MMFR W_ (Applicant) is being processed for separation due to a pattern of misconduct, and commission of a serious offense. In considering this administrative separation, I took onto account references (a), (b) and (c), enclosures (1) through (6), MMFR W_ ‘(Applicant) performance of duty, the circumstances surrounding his misconduct, the likelihood of reoccurrence, and the efforts made by this command to assist him. MMFR W_’ (Applicant) chain of command has exhausted every effort to bring this Sailor up to Navy standards only to receive negative results. He has not made any effort to conform to the rules and regulations or accept responsibility for his actions. Unfortunately, MMFR W_ (Applicant) has not taken the assistance made to him seriously, and his actions are a strong indication that if he is retained on active duty, it is foreseeable his personal behavior will lead to further misconduct and overshadow any potential for future Naval service. Therefore, I consider him to have no potential for continued Naval service and his actions are not conducive to good order and discipline at NNPTU on in the Navy.”

040220:  DD-214: Applicant discharged with a general (under 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 20040220 by reason of misconduct due to a pattern of misconduct (A and B) with a service characterization of general (under honorable conditions). 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).

By regulation, a discharge shall be deemed proper, unless it is determined that an error of fact, law, procedure, or discretion has substantially prejudiced the rights of the Applicant. The Applicant was discharged with a characterization of general (under honorable conditions) by reason of misconduct due to a pattern of misconduct. A review of the Applicant’s service record convinced the Board that a preponderance of evidence exists to support the Applicant’s basis for separation. The Applicant was awarded NJP on four separate occasions and violated a NAVPERS 1070/613 Counseling/Retention Warning thus establishing a pattern of misconduct. The record further reveals that the Applicant was properly processed and notified for separation by reason of misconduct due to a pattern of misconduct on 20040203 with a least favorable characterization of general (under honorable conditions). On the same day, the Applicant waived his procedural rights. On 20040217, the Commanding Officer, Naval Nuclear Power Training Unit, directed the Applicant’s discharge with a general (under honorable conditions) by reason of misconduct due to a pattern of misconduct. Based upon the above review, the Board unanimously concluded that the Applicant’s discharge processing was in substantial compliance with applicable statutes, rules, and regulations. The Board could find no error of fact, law, procedure, or discretion that might afford the Applicant relief. Thus, the Board concluded that relief is not warranted.

Regulations require that a Sailor’s characterization of service be based upon the member’s total performance of duty and conduct during the current enlistment. Furthermore, there are circumstances where conduct or performance of duty reflected by a single adverse incident may form the basis of characterization for a Sailor’s overall service. The incident need not result in formal punishment to be properly used to characterize a Sailor’s service. When the service of a member of the U.S. Navy has met the standard for acceptable conduct and performance, it is appropriate to characterize that service as honorable. A general (under 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 four nonjudicial punishment proceedings for multiple violations of UCMJ Articles 86, 92, and 107. The Applicant’s misconduct reflects his failure to meet the minimum standards required for an honorable discharge. 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. 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 25 April 2005, 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 .

D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs .

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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