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NAVY | DRB | 2005_Navy | ND0501163
Original file (ND0501163.rtf) Auto-classification: Denied


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

ex-CR, USN
Docket No. ND05-01163

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 general (under honorable conditions). 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 Other Than Honorable Conditions by reason of misconduct due to a pattern of misconduct .







 PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 “I am requesting this change because I believe that I am no longer the same person I was when I was discharged. I was young and immature and made stupid decisions. I have since grown up and would like to not have this discharge hanging over my head for the rest of my life. I would also like to have the peace of mind t know that if I ever wanted to join the armed services that I would be able to without a hassle.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Applicant’s DD Form 215

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20000105 - 20000125      COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20000126             Date of Discharge: 20001201

 Length of Service (years, months, days):

         Active: 00 10 06 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 108 days
         Confinement:              None

 Age at Entry: 18

 Years Contracted: 4 (12 month extension)

 Education Level: 12                                 AFQT: 85

 Highest Rate: CR

 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 :

000625:  Applicant to unauthorized absence on 000625.

 000707:  Applicant from unauthorized absence at 1815 on 000707 (12 days).
000718:  NJP
 Charge I: Violation of UCMJ Art 86-Absence without leave
Specification: In that CR F_(Applicant), did, on or about 25 June 2000, without authority, absent himself from his organization, to wit: NCTC, Gulfport, MS, and did remain so absent until at or about 1815 7 July 2000.
         Award: Forfeiture of $502 per month for 2 months, restriction and extra duty for 45 days. Forfeiture of $251 each month suspended for 6 months. No indication of appeal in the record.

000718:  Retention Warning: Advised of deficiency (VUCMJ Art 86 - Absence without leave.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 000720:  Applicant to unauthorized absence on 000720.

 000721:  Forfeiture of pay $251 awarded at NJP on 000718 vacated.

 000912:  Applicant from unauthorized absence on 000912 (54 days/surrendered).
001013:  Applicant to unauthorized absence at 0630 on 001013.

 001103:  Applicant from unauthorized absence at 1200 on 001103 (21 days/apprehended).

 001103:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct-pattern of misconduct and misconduct-commission of a serious offense.

001103:  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.
001103:  Applicant to unauthorized absence. [Date extracted from DD Form 214, Block 29.]
001109:  NJP
 Charge I: Violation of UCMJ Art 86-Absence without leave
Specification 1: In that CR F_(Applicant), did, on or about 25 June 2000, without authority, absent himself from his organization, to wit: NCTC, Gulfport, MS, and did remain so absent until at or about 1815 7 July 2000.
Specification 2: In that CR F_(Applicant), did, on or about 0630, 13 October 2000, without authority, absent himself from his organization, to wit: NCTC, Gulfport, MS, and did remain so absent until at or about 1200, 3 November 2000.
Charge II: Violation of UCMJ Art 134-Restriction, breaking
Specification 1: In that CR F_(Applicant), having been restricted to the limits of Naval Construction Battalion Center, Gulfport, MS by a person authorized to do so, did, on or about 20 July 2000, break said restriction.
Specification 2: In that CR F_(Applicant), having been restricted to the limits of Naval Construction Battalion Center, Gulfport, MS by a person authorized to do so, did, on or about 13 September 2000, break said restriction.
Charge III: Violation of UCMJ Art 107-False official statement
Specification: In that CR F_(Applicant), on or about 14 September 2000, with the intent to deceive, make to MS2 W_, Command Master at Arms, an official statement, to wit: that he had used marijuana while UA, which statement was totally false, and was then known by the said CR F_(Applicant) to be so false.
         Award: Forfeiture of $502 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
001114:  Commanding Officer, Naval Construction Training Center recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense. Commanding Officer’s comments: “CR F_(Applicant) reported to this command on 23 June 2000 in a temporary duty under instruction status for BU “A” school. On 18 July 2000, CR F_ was taken to CO’s for absence without leave, he was awarded 45 days restriction, 45 days extra duty and forfeiture of ½ month’s pay for 2 months (forfeiture suspended for 6 months, suspension vacated 21 July 2000). Within 2 days after NJP, CR F_(Applicant) broke restriction to begin his second period of absence without leave. He surrendered to this command on 12 September 2000. Upon returning, CR F_(Applicant) told his chain of command that he had not used any illegal drugs during his absence. However, upon learning that he was being retained in the naval service, CR F_(Applicant) admitted to the command master-at-arms that he had used marijuana while UA. When his urinalysis results were received as negative, he was charged with false official statement and NJP was scheduled. On 13 October 2000, prior to NJP, CR F_(Applicant) broke restriction again to begin his third period of absence without leave. He surrendered to this command on 3 November 2000 and was taken to CO’s NJP on 9 November 2000. He was awarded 45 days restriction, 45 days extra duty and forfeiture of ½ month’s pay for 2 months. Based on the foregoing, and per references (b) and (c), recommend that CR F_(Applicant) be discharged with a characterization as other than honorable. ”

001115:  Chief of Naval Education and Training directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

 Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged, in absentia, on 20001201 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 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 states he was young, immature and made stupid decisions and that this acknowledgement of immaturity should mitigate his misconduct. The Applicant would also like to have the peace of mind to know that if he ever wanted to, he could rejoin the armed services. The NDRB acknowledges the Applicant's regret concerning his poor choices and lack of judgment at the time he was in the service. However, w hen the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. An under other than 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. The Applicant’s service was marred by o ne retention warning and two nonjudicial punishment proceedings for:

•         Violations of article 86 (3 specifications unauthorized absence)
•         Violations of article 134 (2 specifications breaking restriction)
•         Violation of article 107 (false official statement)
Violations of Articles 86 and 107 are considered serious offenses and typically warrant a punitive discharge if adjudged at a special or general court-martial. The Applicant's misconduct is clearly documented, as described above, and the evidence of record does not show that the Applicant should not be held accountable for his actions. 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.

For the edification of the Applicant, 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. 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, Articles 86 and 107.

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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