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NAVY | DRB | 2005_Navy | ND0501098
Original file (ND0501098.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND05-01098

Applicant’s Request
The application for discharge review was received on 20050621. The Applicant requests that his 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 20051215. After a thorough review of all 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 characterization of the 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 the application:

“I request an upgrade from OTH to an honorable discharge because I’m trying to join the Army.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

No other documentation was submitted.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20010228 – 20010917               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20010918             Date of Discharge: 20020425

 Length of Service (years, months, days):

         Active: 00 07 08
         Inactive: None

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

 Age at Entry: 18

Years Contracted: 4 (12 month extension)

 Education Level: 12                                 AFQT: 56

 Highest Rate: SR

 Final Enlisted Performance Evaluation Averages (number of marks):

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

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): None.
* Not Available


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 :

010917:  Enlistment waiver granted for one non-minor misdemeanor (fighting).

020205:  Applicant charged with striking SR G_ in side of head with fist.

020307:  Retention Warning: Advised of deficiency (NJP - Article 128, Assault), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 020307:  NJP for violation of UCMJ, Article 128 (assault).
         Award: Oral Reprimand, forfeiture of 1/2 pay per month for 1 month, restriction and extra duty for 45 days (suspended for 6 months). No indication of appeal in the record.
020324:  Applicant charged with underage drinking and entering female BEQ.

 020328:  NJP for violation of UCMJ, Article 92 (disobeying an order or regulation, 2 specifications).
 Specification 1: Consuming alcohol while under the legal age. Specification 2: Entering the female BEQ.
          Award: Restriction and extra duty for 45 days (suspended for 6 months). No indication of appeal in the record.
020329:  Applicant notified of intended recommendation for discharge by reason of misconduct pattern of misconduct. (Lease favorable characterization illegible).
020329:  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.
020329:  Commanding Officer, Naval Hospital Corps School, recommended to Commander Naval Training Center, Great Lakes that SR S_ (Applicant) be discharged with an under other than honorable conditions by reason of misconduct pattern of misconduct. Commanding Officer’s comments: “SR S_’s (Applicant) disregard for Navy regulations demonstrates that he has no potential for further Naval service. I strongly recommend he be expeditiously separated from the military service with an other than honorable discharge”.

020403:  Commander, Naval Training Center, Great Lakes, directed the Applicant's discharge with an 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 20020425 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 all available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

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. A under other than honorable conditions discharge is warranted when significant negative aspects of a member's conduct outweigh the positive aspects of the member's military record. The Applicant’s service was marred by two nonjudicial punishments for violations of UCMJ Article 92 (disobey an order or regulation, 2 specifications), and Article 128 (assault). Each violation of Article 92 and Article 128 is considered the commission of a serious offense, as such is punishable by a punitive discharge if convicted by courts-martial. A pattern of misconduct, the reason for the Applicant’s discharge, is defined by reference (A) as two or more nonjudicial punishments during a single enlistment. There is credible evidence in the record that the Applicant was guilty of multiple infractions of the UCMJ. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Separation under these conditions generally results in a service characterization of under other than honorable conditions. 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, the 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. This issue is without merit, relief denied.

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. The Applicant did not submit post service documentation for the board’s consideration.

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. 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 (disobey an order or regulation) and Article 128 (assault).

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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