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NAVY | DRB | 2005_Navy | ND0501164
Original file (ND0501164.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT


 FOR OFFICIAL USE ONLY

ex-HR, USNR
Docket No. ND05-01164

Applicant’s Request
The application for discharge review was received on 20050706. 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. In the acknowledgement letter the Applicant was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington, DC area. The Applicant did not respond.

 Decision

 A documentary discharge review was conducted in Washington, D.C. on 20051206. After a thorough review of all available records, supporting documents, facts, and circumstances unique to this case an impropriety in the characterization of the Applicant’s service was discovered by the NDRB. The Board’s vote was unanimous that the discharge and the reason for discharge shall change to: HONORABLE/COMPLETION OF REQUIRED ACTIVE SERVICE, authority: MILPERSMAN 1910-104, Separation Code “MBK”.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“I do not feel I was fairly charged in my sentencing. I served 30 days and was returned to my regular duties after release. I feel I was unfairly titled in my discharge.
I feel I should have an E-3 discharge title. I feel I should have an honorable discharge”.

 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: None
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19870623             Date of Discharge: 19900629

 Length of Service (years, months, days):

         Active: 03 00 07 (Does not exclude lost time.)
         Inactive: 00 01 23

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

 Age at Entry: 18

Years Contracted: 8

Education Level: 12                                 AFQT: 30

 Highest Rate: HA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.3 (3)              Behavior: 3.1 (3)                          OTA : 3.4 (3)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): None


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

UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct - commission of a serious offense, authority: MILPERSMAN, Article 3630600.
Chronological Listing of Significant Service Events :

870623:  Commenced active duty for a period of 36 months.

870812:  Pre-service waiver for experimental marijuana use granted.

890202:  Applicant to unauthorized absence at 0715 on 02 February 1989.

 890202   Applicant from unauthorized absence at 0750 on 02 February 1989 (35 minutes/surrendered).

 890202:  Counseling: Advised of deficiency (unauthorized absence) notified of corrective actions and assistance available.

 890209:  Applicant to unauthorized absence at 0700 on 09 February 1989.

 890209   Applicant from unauthorized absence at 0850 on 09 February 1989 (1 hour and 50 minutes/surrendered).

890214:  Applicant charged with the violation of UCMJ Article 92 (failure to obey order), failed to answer clinic phone.

 890221:  Applicant to unauthorized absence at 0900 on 21 February 1989.

 890221:  Applicant from unauthorized absence at 1200 on 21 February 1989 (3 hours/surrendered).

 890226:  Applicant to unauthorized absence at 0730 on 26 February 1989.

 890227:  Applicant from unauthorized absence at 0715 on 27 February 1989 (23 hour and 45 minutes/surrendered).

 890308:  NJP for violations of UCMJ, Article 86 (unauthorized absence, 4 Specs):
         Specification 1: From 0900, 21 February 1989, until 1200, 12 February 1989.
         Specification 2: From 0700, 09 February 1989, until 0850, 09 February 1989.
         Specification 3: From 0715, 02 February 1989, until 0750, 02 February 1989.
         Specification 4: From 0730, 26 February 1989, until 0715, 27 February 1989.
         Violation of UCMJ, Article 92 (failure to obey order or regulation): 14 February 1989, failed to answer the clinic phone.
         Award: Correctional Custody 30 days. No indication of appeal in the record.

890315:  Applicant received at Correctional Custody Unit.

890413:  Applicant released from Correctional Custody Unit.

890608:  Applicant charged with a violation of UCMJ Article 92 (failure to obey a regulation), by allowing an unauthorized adult female and her baby to stay in the Applicant’s BEQ room.

890810:  Applicant charged with a violation of UCMJ Article 108 (damage, destruction of military property), breaking window in room 326 of BEQ 50 (value of $148.00).

 890930:  Applicant to unauthorized absence at 1500 on 30 September 1989.

 890930:  Applicant from unauthorized absence at 1600 on 30 September 1989 (1 hour/surrendered).

 891001:  Applicant to unauthorized absence at 1500 on 01 October 1989.

 891001:  Applicant from unauthorized absence at 1600 on 01 October 1989 (1 hour/surrendered).

891002:  Memorandum from HM1 M_ to HMC B_ documented frequent and numerous counseling as being unsuccessful. HN G _ (Applicant) assigned two weeks of EMI.

891016:  Applicant charged with violating UCMJ Article 91 (failure to obey an order), to report in dress blues at 1300 for Deputy Commander’s screening.
891018:  NJP for violations of UCMJ, Article 86 (unauthorized absence, 2 Specs).
         Specification 1: From 1500, 30 September 1989, until 1600, 30 September 1989.
         Specification 2: From 1500, 01 October 1989, until 1600, 01 October 1989.
 Violation of UCMJ, Article 91 (willfully disobeying a petty officer) report in dress blues at 1300, 16 October 1989 for Deputy Commander’s Screening.
Award: Forfeiture of $335.00 pay per month for 2 months, extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
891113:  Applicant unauthorized absence until 0810 on 13 November 1989.
891120:  Applicant unauthorized absence of 30 minutes on 20 November 1989.

891130:  Applicant to unauthorized absence at 1500 on 30 November 2005.

 891130   Applicant from unauthorized absence at 1600 on 30 November 2005 (1 hour surrendered).
891213:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to commission of a serious offense.
891218:  Applicant advised of rights and having consulted with counsel, elected to receive copies of the documents used to support the recommendation for separation and to appear before an administrative discharge board.

 900313:  An administrative discharge board, based upon preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to serious offense, that such misconduct warranted separation, and recommended a characterization of discharge as other than honorable.
900503:  Commander, National Naval Medical Center, recommended to Commander, Naval Military Personnel Command that the Applicant be discharged under other than honorable conditions by reason of misconduct due to commission of a serious offense. Commander’s comments: “HR G_ (Applicant) has been to mast two times, and was awarded Correctional Custody at the first mast. HR G_’s (Applicant) attitude and performance still have not conformed to the rules and regulations of the Navy. He continues to be an administrative burden. HR G_ (Applicant) shows no potential for further useful naval service. A punitive discharge for Articles 91 and 92 are authorized by the Manual for Courts-Martial.
         I most strongly recommend that the characterization of separation be under Other Than Honorable conditions. I further recommend that HR G_ (Applicant) be separated as expeditiously as possible”.

900522:  COMNAVMILPERSCOM notified NATNAVMEDCEN that a new board must be convened. When the respondent is a reservist only officers may be appointed to and administrative board which may assign an other than honorable characterization of service. The previous administrative board included an HMC.

900604:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to commission of a serious offense.

undated:         Applicant advised of rights and having consulted with counsel, elected the right to submit verbal/written statements to an administrative discharge board and to appear before an administrative discharge board.
900607:  An administrative discharge board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to serious offense, that such misconduct warranted separation, and recommended discharge with a under honorable conditions (general).
900607:  Commander, National Naval Medical Center, recommended to Commander, Naval Military Personnel Command that the Applicant be discharged under other than honorable conditions by reason of misconduct due to commission of a serious offense. Commander’s comments: “Due to a flaw in the membership of HR G_’s (Applicant) first board, he had the benefit of having a new board convened in his case. Although the first board recommended an Other Than Honorable discharge, this second administrative discharge board recommended a General discharge for HR G_ (Applicant). However, HR G_ (Applicant) shows absolutely no remorse for his actions and displays no potential whatsoever for retention. HR G_’s (Applicant) attitude and performance still have not conformed to the rules and regulations of the U.S. Navy. In fact, HR G_ (Applicant) arrived 45 minutes late to his own administrative board. HR G_ (Applicant) refuses to improve his behavior and attitude and continues to be a significant administrative burden. A punitive discharge is authorized by the Manual for Courts-Martial for violations of Articles 91 and 92 of UCMJ.
         I strongly recommend that the characterization of separation in this case be under Other Than Honorable conditions. I further recommend that HR G_ (Applicant) be separated as expeditiously as possible.
         Please not that HR G_’s (Applicant) EAOS is 22 June 1990.”

900618:  COMNAVMILPERSCOM , directed the Applicant's discharge with a under honorable conditions (general) by reason of misconduct due to commission of serious offense.
PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19900629 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of general (under 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 improper (C).

The Applicant contends his service should have been characterized as honorable, and he was unfairly charged. Under applicable regulations, when a service member reaches his End of Active Obligated Service (EAOS) his service shall be characterized as honorable unless performance evaluation averages warrant a general (under honorable conditions) characterization. Although the Applicant’s record documents multiple violations of the UCMJ and two nonjudicial punishments, the record also documents performance marks, which warrants an honorable characterization of service. The Applicant’s EAOS was 22 June 1990 with no extensions. What is more, the record shows that on 07 June 1990 the command was aware of the Applicant’s EAOS. The Applicant reached his EAOS seven days prior to being discharged for misconduct. Therefore, the Board unanimously agreed that his discharge was improper. The characterization of service shall change to honorable and the reason for separation shall change to Completion of Required Active Service. Relief granted.

The Applicant states that he was “unfairly titled” and that he “should have an E-3 title”. The record shows that the Applicant was never advanced to the pay-grade of E-3, and he was properly reduced in rank to E-1 at NJP on 18 October 1989. The Board presumes the Applicant is referring to his RE-Code. 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.

Because the Applicant’s discharge was over 15 years ago, the NDRB has no authority to provide an additional review of this case. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in status of his naval service.

Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560A), Change 8, effective
21 Aug 89 until 14 Aug 91, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

 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 91 (willfully disobeying a petty officer), Article 92 (failure to obey and order) and Article 108 (damage, destruction of military property).

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 .

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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