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NAVY | DRB | 2005_Navy | ND0501160
Original file (ND0501160.rtf) Auto-classification: Denied


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

ex-FR, USN
Docket No. ND05-01160

Applicant’s Request
The application for discharge review was received on 20050706. 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 20051215. 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 Under Honorable Conditions (General) 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 would like the board to review my discharge & change it to honorable and/or change my RE-4 code to RE-3 or RE-2.

I will not say I had a good service record nor state that I was wrongfully discharged. I had multiple cases in which I presented a poor attitude and acted out. I allowed personal problems to get in the way of something I wanted most of my life, which was serving this great country & our armed forces.

What I’m asking is to allow me another chance to enlist again as a reserve in either the Navy or Army.

I am now married with a stable home life, and been employed at my present job since my discharge.

I not demanding a change since I deserved what I got. What I’m asking for is a second chance to make things right.”

Thank You.

 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)     19890412 – 19890418               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19890419             Date of Discharge: 19920417

 Length of Service (years, months, days):

         Active: 02 11 14 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 15 days
         Confinement:              3 days

 Age at Entry: 18

Years Contracted: 4

Education Level: 12 (GED)                                   AFQT: 63

 Highest Rate: FN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.0 (4)              Behavior: 3.0 (4)                 OTA: 3 .50

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Sea Service Deployment Ribbon, National Defense Service Medal, Southwest Asia Service Medal.


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

UNDER HONORABLE CONDITIONS (GENERAL)/ Misconduct - Pattern of misconduct, authority: MILPERSMAN, Article 3630600.
Chronological Listing of Significant Service Events :

890511:  Pre-service waiver for experimental/casual use of marijuana for the WT/GM rating granted.

891019:  NJP for violation of UCMJ, Article 134: On or about 28 and 29 Sep 89, wrongfully use discrediting words, to wit: “I was dropped from A-school and I cursed out WTC H_”, or words to that effect, which were prejudicial to good order and discipline in the armed forces.
 Award: Restriction to NAS North Island for 7 days, extra duty for 4 days. No indication of appeal in the record.
901015:  NJP for violation of UCMJ, Article 113: Misbehavior of a sentinel .
 Award: Restriction and extra duty for 30 days. No indication of appeal in the record.
901015:  Retention Warning: Advised of deficiency (NJP held on 901015.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
910912:  Retention Warning: Advised of deficiency (Violation of the UCMJ, Article 113-Misbehavior of a sentinel on or about 0600, 901005.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
920124:  NJP for violation of UCMJ, Article 107: False official statement on or about 920102.
 Award: Forfeiture of $200.00 per month for 1 month, restriction and extra duty for 30 days. All punishments suspended for 3 months. No indication of appeal in the record.
920131:  Recommendation for advancement to HT3 withdrawn due inability to separate his personal affairs from the work environment.
920301:  Applicant UA from USS SCHENECTADY (LST 1185).

920303:  Applicant missed sailing of vessel from San Diego, California.

920303:  Applicant declared a deserter.
920313:  Applicant missed sailing of vessel from San Diego, California.
920316:  Medical evaluation by Psychology Intern:
 AXIS I: Occupational Problem
          AXIS II: Personality Disorder NOS with Narcissistic and Antisocial Features/Severe.
         AXIS:III: None
         SNM is not considered mentally ill but manifest a longstanding disorder or character and behavior of such severity as to render him incapable of serving adequately in the navy. He will not benefit from hospitalization or psychiatric treatment. He is judged to be a continuing risk to other if retained in the naval service.
920324:  NJP for violation of UCMJ, Article 85: Desertion on or about 0730, 920301 until on or about 1248, 920316.
 Violation of UCMJ, Article 87: (2 specifications), Missing movement on or about 0700, 920303, and 0900, 920313.
          Award: Confinement to the brig for 3 days on Bread & Water. No indication of appeal in the record.

920401:  Applicant notified of intended recommendation for discharge convenience of the government due to personality disorder as evidenced by SNM psychiatric evaluation, misconduct due to a pattern of misconduct as evidenced by all punishments under the UCMJ in SNM current enlistment and misconduct due to commission of a serious offense as evidenced by the following violations of the UCMJ: Article 85: Desertion, Article 87: Missing movement (2 specifications), Article 107: False official statement, Article 113: Misbehavior of sentinel or lookout [Extracted from CO’s message].
920401:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights [Extracted from CO’s message].
920402:  Commanding Officer, USS SCHENECTADY (LST 1185 recommended discharge by reason of convenience of the government due to personality disorder, misconduct due to pattern of misconduct and misconduct due to commission of a serious offense. Commanding Officer’s comments: “FR C_ (Applicant) has a history of family problems and personal shortcomings which have resulted in his inability to remain a productive member of the naval service. He was formally counseled concerning his violations of the UCMJ and signed a page 13 entry on 12 Sep 91. He violated that warning by going UA during amphibious refresher training, leading to charges of desertion and missing movement. Although I believe FR C_(Applicant) should be held responsible for his actions, after consulting his chain of command, speaking with his mother personally, and reviewing his psychiatric evaluation. I feel his personality disorder and family problems directly led to his violations of the UCMJ. He has been punished at mast accordingly for each offense, and his service had it not been for recent personal problems was fairly honorable. I strongly recommend a general discharge (under honorable conditions).”

920410:  BUPERS directed the Applicant's discharge with a under honorable conditions (general) by reason of misconduct pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19920417 by reason of misconduct due to a pattern of misconduct (A and B) with a service characterization of under honorable conditions (general). 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).

The Applicant requests an upgrade of his discharge to Honorable based on equity and post service conduct. 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’s service was marred by:

•         2 retention warnings
•         4 nonjudicial punishment proceedings for violations of Articles of the UCMJ:
o        134 - Wrongful use of discrediting words
o        113 - Misbehavior of a sentinel
o        107 - False official statement
o        85 - Desertion
o        87 - Missing movement (2 specifications).

Violations of Articles 113 , 107, 85 and 87 are considered serious offenses and typically warrant a punitive discharge if adjudged at a special or general court-martial. 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 also states he would like to have his “RE” code changed so he could have a chance to enlist as a reservist in the Navy or Army. 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. Reenlistment policy of the naval service is promulgated by the Commander, Navy Recruiting Command, 5722 Integrity Drive, Bldg 784, Millington, TN 38054. The Applicant is advised that 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 states that his post service life is stable. The Board advises the Applicant that 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 the service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post- service conduct and behavior as a reason to upgrade a discharge. Evidence of continuing educational pursuits, employment record, documentation of community service, and certification of non-involvement with civil authorities are examples of verifiable documentation that should have been provided to receive consideration for relief based on post-service conduct. The Applicant’s statements concerning post-service conduct, without documented evidence, were found not to mitigate the offense for which he was discharged. Relief not warranted.

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, effective 15 Aug 91 until
04 Mar 93), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - A 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, Articles 113 (misbehavior of a sentinel), 107 (False official statement), 85 (Desertion) and 87 (2 specifications of missing movement).

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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