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NAVY | DRB | 2006_Navy | ND0600319
Original file (ND0600319.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-AOAR, USN
Docket No. ND06-00319

Applicant’s Request
The application for discharge review was received on 20050825 . 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 20061025 . 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 commission of a serious offense .



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated
Applicant’s issues, as stated on the application:
“ I was prosecuted for Adultery , rape, theft of a motor vehicle , and misconduct and had to spend a night in a drunk ta nk based on the fact that I was a cussed of being mentally unstable . When I went up they dropped the theft of a motor vehicle , rape, and the misconduct on the fact that the girl that alleged that I raped her dismissed and told the Captain that I did not rape her. The theft of a motor vehicle was miss understood and dropped because it was a problem that I had with a car dealership of payment problems. The misconduct was dropped based on the fact that they dropped the charges because I proved to mentally staple . The adultery was never proved but I was charged at Captains mass. I am trying to reenter the service but based on my RE code I can not I am asking to get this changed so that I may renter the military services. ”
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)     20021126 - 20030701       COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 20030702              Date of Discharge: 20040803

Length of Service (years, months, days):

          Active: 0 1 0 1 02
         Inactive: None

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

Age at Entry: 18
Years Contracted: 4
Education Level: 12                                 AFQT: 49

Highest Rate: AOAA

Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 1 .0 ( 1 )                        Behavior: 1.0 ( 1 )                  OTA: 1 . 23

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 :

040604:  NJP for violation of UCMJ, Article 92 : (Failure to obey other lawful written order .
         Specification: In that Aviation Ordnanceman Airman Apprentice T_ L. W_(Applicant), U.S. Navy, USS ABRAHAM LINCOLN, on active duty, having knowledge of a lawful order issued by Captain R_ H_, to not have contact or attempt to contact, by any means, Culinary Specialist Seaman Apprentice N_ M. P_, an order which it was his duty to obey, did at or near Everett, Washington on or about 12 May 2004, till on or about 2 Jun 2004, fail to obey the same by violating the military protective order issued to him.
Violation of UCMJ, Article 134: ( Adultery ) .
 Specification: In that Aviation Ordnanceman Airman Apprentice T_ L. W_(Applicant), U.S. Navy, USS ABRAHAM LINCOLN, on active duty, a married man, did, at or near Bremerton, Washington, on divers occasions, wrongfully have sexual intercourse with Culinary Specialist Seaman Apprentice N_ M. P_, a married woman not his wife.
          Award: Forfeiture of $ 622.0 0 per month for 2 month s , restriction and extra duty for 45 days , reduction to E-1. No indication of appeal in the record.
040608:  Applicant found medically qualified for separation.

 040630 :  NJP for violation of UCMJ, Article 86: (Failure to go to appointed place of duty) .
         Specification 1: In that Aviation Ordnanceman Airman Apprentice T _ L. W_(Applicant), U.S. Navy, USS ABRAHAM LINCOLN, on active duty, did, on board USS ABRAHAM LINCOLN located at Naval Air Station North Island, San Diego, California, on or about 13 June 2004; without authority, fail to go at the time prescribed to his appointed place of duty, to wit: 0615 Restriction Muster.
         Specification 2: In that Aviation Ordnanceman Airman Apprentice T _ L. W_(Applicant), U.S. Navy, USS ABRAHAM LINCOLN, on active duty, did, on board USS ABRAHAM LINCOLN located at sea, on or about 15 June 2004, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: 0615 Restriction Muster.
         Award: R eduction to E- 1 . Reduction suspended for 6 months. No indication of appeal in the record.
040712 :  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable by reason of misconduct - commission of a serious offense .

040712 :  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 .
040725 :  Commanding Officer, USS ABRAHAM LINCOLN , recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense . Commanding Officer’s comments: “ This sailor has been a const ant burden on his COC . He has failed to meet the basic obligations to his family and lives a lifestyle contradictory to the core values we teach to and expect of our sailors. I recommend characterization of service as other than honorable. ”
040802 :  C OMCRUDESGRU THREE , directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.


PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20040803 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 Applicant implies that his discharge is improper because he was under suspicion of committing adultery, rape, theft and misconduct , but only subject to nonjudicial punishment proceedings for committing adultery. The Applicant further implies that his discharge is improper because it was never “proven” that he committed adultery. 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 two nonjudicial punishment proceedings for violations of Articles 86, 92 and 134 of the UCMJ. The Applicant’s violations of Articles 92 and 134 are considered serious offenses for which a punitive discharge is authorized is adjudged as part of the sentence upon conviction at special or general court martial. The record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. 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.

Regarding the Applicant’s desire to have his “RE” code changed, the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces. Therefore, 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. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment, enlistment or educational opportunities. Relief would be inappropriate.

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 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 92, failure to obey order/regulation or Article 134, adultery.

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 .
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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