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NAVY | DRB | 2005_Navy | ND0501342
Original file (ND0501342.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-AR, USN
Docket No. ND05-01342

Applicant’s Request
The application for discharge review was received on 20050809. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and the Narrative Reason for Separation be changed to “RE Code.” 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 20060413. 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 commission of a serious offense .
PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“I feel that I deserve an Honorable Discharge with an RE-1 Reenlistment code. I was told I was separated for going U/A a second time which is not true.”

 Applicant’s Remarks: (Taken from the DD Form 293.)

“I am now a more mature person and I wish to make the military a part of my life again”

 Documentation
In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:
Leave request/authorization, dtd December 6, 2001
Applicant’s DD Form 214
JUMPS LES Online Inquiry, dtd 1-31 January 2002 (3 pages)
Statement from Applicant, undtd

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19990813 - 20000416      COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 20000417             Date of Discharge: 20020202

 Length of Service (years, months, days):

         Active: 01 09 17 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence:    47 days
         Confinement:                       30 days

 Age at Entry: 17 (Parental Consent)

 Years Contracted: 4

Education Level: 11                                 AFQT: 50

 Highest Rate: AN

 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): Meritorious Unit Commendation
* Not Available


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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 1910-142 (formerly 3630605).

 Chronological Listing of Significant Service Events :

010731:  Applicant to unauthorized absence at 0900 on 010731.

010830:  Applicant declared a deserter.

 010911:  Applicant from unauthorized absence at 0600 on 010911 (41 days/surrendered).
011012:  Charges preferred for Violation of the UCMJ, Article 86:
Specification 1: In that Airman J_ C. S_(Applicant), U.S. Navy, USS JOHN F. KENNEDY, on active duty, did, on or about 31 July 2001, without authority, absent himself from his unit, to wit: USS JOHN F. KENNEDY, located at Naval Station Mayport, Florida, and did remain so absent until on or about 11 September 2001.
Specification 2: In that Airman J_ C. S_(Applicant), U.S. Navy, USS JOHN F. KENNEDY, on active duty, did, on board USS JOHN F. KENNEDY, at or about 0700, 5 October 2001, without authorization, fail to go to at the time prescribed to his appointed place of duty, to wit: pulper watch.
Specification 3: In that Airman J_ C. S_(Applicant), U.S. Navy, USS JOHN F. KENNEDY, on active duty, did, on board USS JOHN F. KENNEDY, at or about 0700, 11 October 2001, without authority, fail to go to at the time prescribed to his appointed place of duty, to wit: flight deck.
Charge II: Violation of the UCMJ, Article 91:
Specification 1: In that Airman J_ C. S_(Applicant), U.S. Navy, USS JOHN F. KENNEDY, on active duty, having received a lawful order from Mast Chief Aviation Boatswain’s Mate H_ W. B_, U.S. Navy, a master chief petty officer, then known by the said Airman J_ C. S_(Applicant) to be a master chief petty officer, to stand at attention, an order which it was his duty to obey, did, on board USS JOHN F. KENNEDY, at sea, on or about 11 October 2001, willfully disobey the same.
Specification 2: In that Airman J_ C. S_(Applicant), U.S. Navy, USS JOHN F. KENNEDY, on active duty, having received a lawful order from Aviation Boatswain’s Mate (Aircraft Handling) First Class R_ H_, U.S. Navy, a first class petty officer, then known by the said Airman J_ C. S_(Applicant) to be a first class petty officer, to get to work, an order which it was his duty to obey, did, on board USS JOHN F. KENNEDY, at sea, on or about 11 October 2001, willfully disobey the same.
Charge III: Violation of the UCMJ, Article 107:
Specification: In that Airman J_ C. S_(Applicant), U.S. Navy, USS JOHN F. KENNEDY, on active duty, did, on board USS JOHN F. KENNEDY, located at or near Naval Station Mayport, Floida, on or about 27 June 2001, with intent to deceive, make to Aviation Boatswain’s Mate (Aircraft Handling) First Class S_ C. S_, U.S. Navy, an official statement, to wit: ABH3 P_ told me I could go to my car to get something personal, which statement was totally false and was then known by the said Airman J_ C. S_ to be so false.
Charge IV: Violation of the UCMJ, Article 134:
Specification: In that Airman J_ C. S_(Applicant), U.S. Navy, USS JOHN F. KENNEDY, on active duty, did, on board USS JOHN F KENNEDY, at sea, on or about 11 October 2001, wrongfully communicate to Aviation Boatswain’s Mate (Aircraft Handling) First Class W_ G_, U. S. Navy, a threat, by saying “I will shoot you and bust a cap in your ass,” or words to that effect.

011012:  Charges referred to summary court-martial.

011012:  Summary Court-Martial.
          Charge I: Viol. UCMJ, Art 86:
Specification 1: Unauthorized absence on about 31 July 2001 until on or about 11 September 2001. Plea: Guilty. Finding: Guilty.
Specification 2: Fail to go to appointed place of duty at or about 0700, 5 October 2001. Plea: Guilty. Finding: Guilty.
Specification 3: Fail to go to appointed place of duty at or about 0700, 11 October 2001. Plea: Not Guilty. Finding: Not Guilty.
Charge II: Viol. UCMJ, Art 91:
Specification 1: Disobey a lawful order from a master chief on or about 11 October 2001. Plea: Guilty. Finding: Guilty.
Specification 2: Disobey a lawful order from a second class petty officer on or about 11 October 2001. Plea: Guilty. Finding: Guilty.
Charge II: Viol. UCMJ, Art. 107:
Specification: Wrongfully make a false official statement on or about 27 June 2001. Plea: Not Guilty. Finding: Not Guilty.
Charge IV: Viol. UCMJ, Art 134:
Specification: Wrongfully communicate a threat on or about 11 October 2001. Plea: Not Guilty. Finding: Not Guilty.
         Sentence: Forfeiture of $695.00, confinement for 30 days, reduction to E-1.
         CA action 011107: Sentence approved and ordered executed.
011012:  Applicant found fit for confinement.

 020108:  Applicant to unauthorized absence at 0545 on 020108.

 020114:  Applicant from unauthorized absence at 0545 on 020114 (6 days/surrendered).
020109:  Applicant notified of intended recommendation for discharge by reason of misconduct due to commission of serious offenses. Applicant notified that the least favorable characterization of service possible is under other than honorable conditions.

020109:  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. Commanding Officer’s comments: “Subsequently, [the Applicant] “changed his mind” and indicated that he desired a board. As he has provided no justification or reason for the command to ignore his validly-executed notice of administrative separation, no board has been afforded to him.” [Partial extracted from Commanding Officer’s letter dated 020126.]
020126:  Commanding Officer, USS JOHN F. KENNEDY (CV 67) recommended discharge under other than honorable conditions by reason of misconduct – commission of a serious offense. Commanding Officer’s comments: “At a recent summary court-martial, AR S_(Applicant) was found guilty of unauthorized absence (in excess of 40 days), willfully disobeying order of a master chief petty officer and a first class petty officer, and communicating a threat to shoot a first class petty officer. In addition to the formal court-martial charges, AR S_(Applicant) has had other difficulties as evidenced by enclosure (9). His division officer has documented at least 7 other incidents of unauthorized absence/missed musters, 7 worthless checks written to the ship’s sales office/disbursing officer, and disrespect and assault of a third class petty officer. AR S_(Applicant) has not shown himself to be an asset to his division or the ship. His behavior demonstrates a complete lack of respect for good order and discipline and a total disregard of Naval rules and regulations. His actions are unacceptable and adversely affect the morale and work performance of his shipmates. I strongly recommend that he be separated from the Naval Service under Other Than Honorable conditions for misconduct due to commission of a serious offense.”

020130:  Commander, Navy Region Southeast directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.

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 20020202 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of under other than honorable conditions. After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D). The Board presumed regularity in the conduct of governmental affairs (E).

 Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question. No such impropriety or inequity is evident during the Applicant’s enlistment. 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. An under other than honorable conditions discharge is warranted when a member's conduct involves one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service. T he Applicant’s service was marred by a summary court-martial conviction for violation of two specifications of UCMJ Article 86, unauthorized absence, including an unauthorized absence spanning 41 days, and two specifications of UCMJ Article 91, willfully disobey a noncommissioned officer. Under applicable regulations, a violation of UCMJ Article 86, unauthorized absence in excess of 30 days or a violation of UCMJ Article 91 is considered a serious offense. 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.

 The Applicant contends that his discharge is inequitable because his separation was based upon a period of unauthorized absence for which he had an approved leave chit. As evidence to support the Applicant’s contention, he has submitted a copy of his approved leave chit that covers part of the time in question. Despite the Applicant’s contentions, the Board notes that the period of unauthorized absence the Applicant is challenging was for a period of six days and did not constitute the serious offense for which he was separated. The evidence of record indicates that the Applicant committed three separate serious offenses that all independently support a finding of misconduct due to the commission of a serious offense and a characterization of under other than honorable conditions. Based upon such evidence, the Board could find nothing improper or inequitable in the Applicant’s discharge processing or in the characterization of his service. 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, 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), Change 31, dated 20 Feb 01, effective 25 Jan 01 until 21 Aug 02, Article 1910-142 [formerly 3630605]. SEPARATION 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 86, unauthorized absence in excess of 30 days or Article 91, insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer.

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 .

E. 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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