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NAVY | DRB | 2006_Navy | ND0600154
Original file (ND0600154.rtf) Auto-classification: Denied


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

ex-AA, USN
Docket No. ND06-00154

Applicant ’s Request
The application for discharge review was received on 20051103 . The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions) and the Narrative Reason for Separation be changed to “RE-3 . ” 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 20060908 . After a thorough review of the available 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 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:
“ I want to Reenlist, and my RE code prevents me from doing so.
I joined the Navy post September 11, come home a vetera n of Operation Enduring Freedom. IN retrospect, I see the service has more to offer than just Honor. I feel I deserve the chance to show the Courage and Commitment. ”
Applicant’s Remarks: (Taken from the DD Form 293.)
“ Since my seperation I returned to school, for Auto Body Technician. I graduated early this year and experienced work out on the field. But my true passion is to go back in the service. I still have plenty of berrings and in great shape. ”
Documentation

 Only the service and medical record s were reviewed. The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20011031 - 20011120       COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 20011121              Date of Discharge: 20030131

Length of Service (years, months, days):

          Active: 0 1 0 2 11 (Does not exclude lost time)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 37 day s
         Confinement:              None

Age at Entry: 22

Years Contracted: 4
Education Level: 12                                 AFQT: 47

Highest Rate: AA

Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 1 . 5 ( 2 )               Behavior: 1.5 ( 2 )                  OTA : 1.67

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


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 :

020812:  NJP for violation of UCMJ, Article 91: Disrespect and disobey a lawful order. [Extracted from Retention Warning dated 020812 and NAVPERS 1070/604 form in service record. ]

020812:  Retention Warning: Advised of deficiency (On 12 August 2002 awarded punishment at CO’s NJP for VUCMJ, Article 91, disrespect and disobey a lawful order.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 021023:  Applicant to unauthorized absence. [Extracted from DD Form 214 ]

021023:  Applicant from unauthorized absence. [Extracted from DD Form 214]
021108 :  NJP for violation of UCMJ, Article 86 ( 4 specs): (Unauthorized absence) .
 Violation of UCMJ, Article 91 : (Disobeying a lawful order).
         Award: Forfeiture of $ 522 per month for 2 month s , restriction and extra duty for 45 days. No indication of appeal in the record. [Extracted from Evaluation Report and Counseling Record dated 030109 and NAVPERS 1070/604 form in service record. ]

021108:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as other than honorable by reason of misconduct - pattern of misconduct and misconduct - commission of serious offense.

021108:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.
021218:  Applicant found physically qualified for separation.

 021226:  Applicant to unauthorized absence. [Extracted from DD Form 214 ]

021230:  Commanding Officer, USS JOHN F. KENNEDY CV-67 , made a recommend ation regarding Applicant’s administrative separation. [Extracted from Commander, Carrier Group SIX , letter dtd 030107.]

030107 :  Commander, Carrier Group SIX , directed the Applicant 's discharge under other than honorable conditions by reason of pattern of misconduct.

030131:  DD 214: Applicant discharged this date in absentia.

Service Record contains a partial Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20030131 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 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).
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 a retention warning and two nonjudicial punishment proceedings for violations of Articles 86 and 91 of the UCMJ. The Applicant’s violations of Article 91 are serious offenses. The Applicant’s violation of Article 86 of the UCMJ, for unauthorized absence beginning on 20021226, which was ended by his discharge in absentia, is also the commission of a serious offense, for which a punitive discharge is authorized if adjudged as part of the sentence upon conviction by 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 requests that his Narrative Reason for Separation be changed to “RE-3.” The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted. The evidence of record shows that the Applicant met the criteria for discharge by reason of misconduct due to the pattern of misconduct. The Applicant was properly processed for separation by reason of misconduct due to a pattern of misconduct. No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. To change the Narrative Reason for Separation would be inappropriate. Relief denied.

Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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 Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided any post-service documentation for the Board to consider. 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), re-issued October 2002, effective 22 Aug 2002 until Present, 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, Article 86, absence without leave for more than 30 days or Article 91, insubordinate conduct toward a warrant, noncommissioned 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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