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NAVY | DRB | 2005_Navy | ND0501377
Original file (ND0501377.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND05-01377

Applicant’s Request
The application for discharge review was received on 20050816. 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 20060420. 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

 Applicant’s issues, as stated on the application:

“To Reenlist or Enroll In College”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 149

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19991028 - 19991107      COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19991108             Date of Discharge: 20020816

 Length of Service (years, months, days):

         Active: 02 09 09 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence:    11 days
         Confinement:                       3 days

 Age at Entry: 19

 Years Contracted: 4

 Education Level: 12                                 AFQT: 35

 Highest Rate: ITSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (1)                      Behavior: 3.00 (1)                OTA: 3.00

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Sea Service Deployment Ribbon (X1), Armed Forces Expeditionary Medal (X1), National Defense Service Medal (X1)


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 :

020222:  NJP for violation of UCMJ, Article 92 - Failure to obey order.
          Violation of UCMJ, Article 117 - Provoking speeches and gestures.
 Violation of UCMJ, Article 128 - Assault.
Date of Offense: 020222. [Extracted from Commanding Officer’s letter dated 020807.]
Award: Restriction and extra duty for 30 days. [Extracted from Administrative Remarks dated 020306.]
020306:  Retention Warning: Advised of deficiency (NJP on 020222 for VUCMJ, Article 92 Failure to obey other lawful order, Article 117 - Provoking speeches or gestures an Article 128 - Assault.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 020314:  NJP for violation of UCMJ, Article 92 - Failure to obey other lawful order.
 Date of Offense: 020223
          Award: Restriction for 30 days, reduction to E-3. Reduction suspended for 6 months. No indication of appeal in the record.
020405:  Reduction in pay grade awarded at NJP on 020314 vacated due to continued misconduct.
020405:  NJP for violation of UCMJ, Article 86 - Unauthorized absence (under 24 hours).
 Date of offenses: 020303, 020304, 020320, 020321, 020328.
Award: Confinement on bread and water for 3 days. No indication of appeal in the record.
020614:  Applicant to unauthorized absence at 0600 on 020614.

 020625:  Applicant from unauthorized absence at 1615 on 020625 (11 days/surrendered). EAOS changed to 031118.
020711:  NJP for violation of UCMJ, Article 86 - Unauthorized absence (11 days).
 Violation of UCMJ, Article 87 - Missing movement.
Date of Offense: 020614-020625.
          Award: Forfeiture of $619.65 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. Reduction and forfeiture suspended for 6 months. No indication of appeal in the record.
020731:  Forfeiture and reduction to E-2 awarded at NJP on 929611 vacated.
020731:  NJP for violation of UCMJ, Article 86 - UA (4 specs - under 24 hours).
 Violation of UCMJ, Article 128 - Assault.
Date of Offenses: 020617-020619, 020621, 020623.
          Award: Restriction and extra duty for 30 days, reduction to E-1. No indication of appeal in the record.
020802:  Applicant notified of intended recommendation for discharge by reason of misconduct - pattern of misconduct. Applicant notified that the least favorable characterization of service possible is under other than honorable conditions.
020802:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.
020807:  Commanding Officer, USS TARAWA (LHA 1) recommended discharge under other than honorable conditions by reason of misconduct, due to a pattern of misconduct, as evidenced by nonjudicial punishments hearings on 31 July 2002, 11 July 2002, 11 July 2002, 5 April 2002, 14 March 2002 and 22 February 2002. Commanding Officer’s comments: “SR W_’s (Applicant) repeated violations of the UCMJ are indicative of his inability to conform to naval regulations, standards of conduct and the policies set forth as guidance for the behavior expected of every member of the naval service. Seaman Recruit W_ has gone to nonjudicial punishment five times and is unable to demonstrate consistent misconduct-free behavior for any sustained period of time. Repeated attempts to counsel SR W_ throughout his chain of command have been futile. In the past 6 months SR W_ has been formally counseled over 20 times for various UCMJ violations ranging from unauthorized absence to insubordinate conduct. He is not going to become a productive member of the Navy, therefore, I conclude that he has no potential for continued naval service and I strongly recommend his immediate discharge from the naval service with a other than honorable characterization of service.

020814:  COMPHIBGRU THREE directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20020816 by reason of misconduct due to a pattern of misconduct (A) 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 (B and C).

 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 five nonjudicial punishment proceedings for violations of UCMJ Articles 86, unauthorized absence, Article 87, missing movement, Article 92, failure to obey order or regulation, Article 117, provoking speech and gestures, and Article 128, assault. Additionally, the Applicant was warned by issuance of a NAVPERS 1070/613 counseling/retention warning that continued misconduct could result in administrative separation. Subsequent to this warning, the Applicant engaged in repeated misconduct as noted above and he earned four of his five nonjudicial punishments. Under applicable regulations, the misconduct of record satisfied the requirements to meet 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 Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

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 18, effective
12 Dec 1997 until 21 Aug 2002, 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 .


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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