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NAVY | DRB | 2005_Navy | ND0501106
Original file (ND0501106.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. ND05-01106

Applicant’s Request
The application for discharge review was received on 20050623. 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 20060302. 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:

“Specially requesting that I receive an Honorable Discharge solely for the reason of, joining the Armed Services.”

 Documentation
Only the service and medical records were reviewed. The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20020228 - 20020422      COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 20020423             Date of Discharge: 20041006

 Length of Service (years, months, days):

         Active: 02 05 14 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence:    45 days
         Confinement:                       None

 Age at Entry: 21

 Years Contracted: 4 (12 month extension)

 Education Level: 12                                 AFQT: 49

 Highest Rate: MMFN

 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): National Defense Service Medal
* Not Available


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 :

020228:  Pre-service drug use waiver approved this date.

 040318:  Applicant to unauthorized absence at 0645 on 040318.

 040322:  Applicant from unauthorized absence at 0045 on 040322 (3 days/surrendered). EAOS changed to 060426.
040415:  NJP for violation of UCMJ, Article 86: Unauthorized absence on 040318, violation of UCMJ Article 112a: Wrongful use, possession, of controlled substance.
         Award: Forfeiture of $200.00 pay per month for 2 months, restriction for 30 days, oral admonition, reduction to E-2. Reduction suspended for 6 months. No indication of appeal in the record.

 040531:  Applicant to unauthorized absence on 040531. [Extracted from NJP dated 040702 and DD Form 214, Block 29.]
040604:  Applicant from unauthorized absence on 040604 (4 days). [Extracted from NJP dated 040702 and DD Form 214, Block 29.]
040605:  Applicant to unauthorized absence at 0730 on 040605.

 040608:  Applicant from unauthorized absence at 2000 on 040608 (3 days/surrendered). EAOS changed to 060429.
040617:  Reduction in pay grade awarded at NJP on 040415 vacated due to continued misconduct.

040702:  NJP for violation of UCMJ, Article 86: Absence without leave.
         Date of offense: 040531, 040605, 040617.
         Award: Forfeiture of $650.00 pay per month for 2 months, restriction for 60 days, reduction to E-2. No indication of appeal in the record.

040702:  Retention Warning: Advised of deficiency (Misconduct as evidenced by Commanding Officer’s nonjudicial punishment of 040315 for violation of UCMJ; Article 86, Absence without leave at which Applicant was awarded restriction for 30 days, forfeiture of $200.00 pay per month for 2 months, and reduction in rate to the next inferior pay grade (suspended for 6 months). Misconduct as evidenced by Commanding Officer’s nonjudicial punishment of 040702 for violation of UCMJ, Article 86 Absence without leave at which Applicant was awarded restriction for 60 days, forfeiture of $650.00 pay per month for 2 months, and reduction in rate to the next inferior pay grade.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

040702:  Applicant to unauthorized absence at 0730 on 040702.

 040806:  Applicant from unauthorized absence at 0730 on 040806 (35 days/surrendered). EAOS changed to 060607.
041006:  DD Form 214: Applicant discharged with a general (under honorable conditions) by reason of misconduct due to a pattern of misconduct, authority: MILPERSMAN, Article 1910-140.

Service Record did not contain the Administrative Discharge package.
Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20041006 by reason of misconduct due to a pattern of misconduct (A) 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 (B and C). The Board presumed regularity in the conduct of governmental affairs (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 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 was awarded nonjudicial punishment (NJP) on 20040415 for violations of UCMJ Article 86, unauthorized absence, and 112a, wrongful use, possession of a controlled substance. On 20040702, the Applicant was awarded a second NJP for another violation of UCMJ Article 86, unauthorized absence. Subsequent to this NJP, the Applicant was administratively warned by issuance of a NAVPERS 1070/613 Counseling/Retention warning that further misconduct could result in administrative separation. Following this retention warning, the Applicant commenced another period of UA for 35 days, thereby violating his retention warning. Under applicable regulations, the Applicant’s misconduct did in fact constitute a pattern of misconduct. 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. Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service. 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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