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NAVY | DRB | 2006_Navy | ND0600304
Original file (ND0600304.rtf) Auto-classification: Denied


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

ex-AN, USN
Docket No. ND06-00304

 Applicant ’s Request
The application for discharge review was received on 20051212 . 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 20070419 . 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 shall not change. The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to a pattern of misconduct .





PART I - ISSUES AND DOCUMENTATION

Issues, as stated
Applicant ’s issues, as stated on the application:
“ To allow me to reenlist into another branch of service. ”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant , was considered:
Applicant ’s DD Form 214 (Member 4) (2)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20010919 - 20020604       COG
          Active: None

 Period of Service Under Review :
Date of Enlistment: 20020 605              Date of Discharge: 20050413

Length of Service (years, months, days):

         Active: 02 10 09 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 313 days
         Confinement:              None

Age at Entry: 18
Years Contracted: 4 ( 12 -month extension)

Education Level: 12                                 AFQT: 78

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): National Defense Service Medal


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 :

040109:  Applicant to unauthorized absence at 0700 on 040109.

 040112:  Applicant missed ship’s movement.

 040218:  Applicant from unauthorized absence at 1620 on 040218 (40 days/surrendered).
040225:  NJP for violation of UCMJ, Article 86: (Unauthorized absence)
         Specification: In that Airman P_ J. M_( Applicant ), U.S. Navy, USS JOHN F. KENNEDY, on active duty, did, on or about 040109, 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 040218. (40 days)
Violation of UCMJ, Article 87 : (Missing movement)
Specification: In that Airman P_ J. M_, U.S. Navy, USS JOHN F. KENNEDY, on active duty, did, on or about 040112 through design miss the movement of USS JOHN F. KENNEDY, located at Naval Station Mayport, Florida, with which he was required in the course of duty to move.
         Award: Forfeiture of $ 698.00 per month for 2 month s , restriction and extra duty for 45 days, reduction to E- 2 . Reduction suspended for 6 months. No indication of appeal in the record.

 040225:  Retention Warning: Advised of deficiency ( On 040225, Applicant was awarded punishment at nonjudicial punishment for violation of UCMJ, Article 86, 87 .), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
040524:  Applicant to unauthorized absence on 040524.

040607:  Applicant from unauthorized absence on 040607 (14 days).

 040625 :  NJP for violation of UCMJ, Article 86: (Unauthorized absence)
          Specification: In that Airman P_ J. M_( Applicant ), U.S. Navy, USS JOHN F. KENNEDY, on active duty, did, on or about 040524, 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 040607 (14 days).
         Award: Forfeiture of $140.00 per month for 1 month, restriction for 60 days. No indication of appeal in the record.
040625 :  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 a serious offense.

040625 :  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.

040712 :  Commanding Officer, USS JOHN F. KENNEDY (CV 67), recommended discharge under other than honorable conditions by reason of misconduct -pattern of misconduct and misconduct - commission of a serious offense. Commanding Officer’s comments: “At a recent nonjudicial punishment proceeding, Airman M_( Applicant ) was found in violation of Article 86 - unauthorized absence over 30 days. He was previously awarded nonjudicial punishment for violations of Article 86 - unauthorized absence and Article 87 - missing ship’s movement. He also violated his Page 13 Administrative Counseling/Warning issued to him after his first nonjudicial punishment. At least one of these offenses meets the MILPERSMAN’s definition of a “serious offense”. This type of behavior demonst rates a complete lack of respect for good order and discipline and a disregard for the welfare of his shipmates. As AN M_ does not contest this separation, I strongly recommend he be separated from the naval service under Other Than Honorable conditions for misconduct due to a pattern of misconduct and commission of a serious offense. ”
040716 :  Commander, Carrier Group SIX , directed the Applicant 's discharge as follows: characterization of under other than honorable conditions ; Separation Authority 1910 -142; HKK; RE-4; MISCONDUCT. [NDRB admin note: believe that HKK was an administrative error and that the code should have been HKQ.

040727:  Applicant to unauthorized absence on 040727. [Extracted from DD Form 214, Block 29.]
05041 3 :  Applicant discharged in absentia. Applicant declared from UA, 259 days lost. [Extracted from DD Form 214, Block 29.]
061010:  L etter from Executive Secretary, NDRB to Commander, Carrier Strike Group SIX , requesting c larification of narrative reason and separation code assigned at time of discharge .

061112:  Commander, Carrier Strike Group SIX response to letter from Executive Secretary, Naval Discharge Review Board , concurring with separation code being changed to HKA (pattern of misconduct).

061214:  Letter from Executive Secretary, NDRB to Commander, Carrier Strike Group SIX. Executive Secretary letter of 061010 mistakenly asked for clarification regarding the assignment of Separation Code “HKK”, misconduct drug abuse versus pattern of misconduct . Upon review of the Commander, Carrier Strike Group SIX letter of 040716, the Executive Secretary letter should have asked if the CCG6 intended Separation code of “HKQ”, commission of a serious offense, which is supported by the CCG6 letter of 040716 which specified the following; characterization of Under Other Than Honorable Conditions; Separation Authority MILPERSMAN 1910-142 (commission of a serious offense) ; by reason of MISCONDUCT (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 , in absentia, on 20050413 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 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).

The Applicant did not submit any decisional issues.

 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 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 2 nonjudicial punishment proceedings for violations of Articles 86 and 87of the UCMJ. Violations of UCMJ Article 86 (unauthorized absence more than 30 days) and 87 (missing movement) are considered serious offenses for which a punitive discharge is authorized if adjudged 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.

For the Applicant’s edification, the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces and the Board 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 additional evidence related to this 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 02 until 25 April 2005, 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 (absence without leave for more than 30 days) and 87 (missing movement).

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction . You should read Enclosure (5) of the Instruction 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 Instruction 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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