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NAVY | DRB | 2006_Navy | ND0600332
Original file (ND0600332.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. ND06-00332

Applicant’s Request
The application for discharge review was received on 20041122. The Applicant requests that the Narrative Reason for Separation be changed, but did not specify what the requested change should reflect. The Applicant requests a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area. The Applicant did not designate a representative on the DD Form 293. The Applicant was verbally informed by the Executive Secretary that a documentary review would be conducted first.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060105. 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 reason for discharge shall not change. The discharge shall remain General (Under 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 would like for my RE-4 code and/or my narrative reason to be upgraded for eligibility to return to a 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 1 and 4)
Thirty-nine pages from Applicant’s service record
Character Reference ltr from D_ M_, Applicant’s uncle, dtd October 14, 2003
Character Reference ltr from C_ C_, Professor of Management, Berkley College, dtd        October 18, 2003
Character reference ltr from M_ C_, dtd October 13, 2003
Letter written in Spanish, dtd October 16, 2003 (3 pages)
Character reference ltr from Y_ S_, dtd October 14, 2003 (2 pages)
Eleven pages from Applicant’s Army enlistment

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USAR (DEP)     20000524         UNKNOWN
         USNR (DEP)      20020323 - 20020408      COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 20020409             Date of Discharge: 20031118

 Length of Service (years, months, days):

         Active: 01 07 10 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              2 days

 Age at Entry: 22

 Years Contracted: 4

 Education Level: 12                                 AFQT: 74

 Highest Rate: AN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.0 (1)                       Behavior: 3.0 (1)                 OTA: 3.67
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):

GENERAL (UNDER HONORABLE CONDITIONS)/ PATTERN OF MISCONDUCT, authority: MILPERSMAN, Article 1910-140 (formerly 3630600).
Chronological Listing of Significant Service Events :

030418:  NJP for violation of UCMJ, Article 134.
         Award: Forfeiture of $645 per month for 1 month, restriction for 20 days, reduction to E-2. Reduction suspended for 6 months. No indication of appeal in the record. [Extracted from supporting documents submitted by the Applicant.]

030418:  Retention Warning: Advised of deficiency (Article 134, False or unauthorized pass offenses.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

030808:  R eduction in pay grade awarded at NJP on 030418 vacated due to recommendation of Disciplinary Review Board based upon Applicant’s tardiness in recent weeks. [Date estimated.] [Extracted from pretrial confinement letter dated 030813, submitted by the Applicant .]
030810:  MCAS Beaufort, SC Military Police Journal. C_ and C_ reported and aggravated assault by the Applicant. The Applicant brandished a knife stating that C_ and C_’s lives were in his hands while walking in the parking lot adjacent M Barracks, Building 933. Applicant further stated he was upset about her not allowing him to ride in her vehicle the night before. A permissive search was conducted of Applicant’s quarters and his vehicle. Military police produced two kitchen paring knives, one knife was found under the driver’s seat of Applicant’s vehicle and the other was found Applicant’s barracks room on his secretary. Both C_ and C_ viewed the knives, but eliminated either one as the knife Applicant brandished in the parking lot. Applicant was interrogated and denied culpability. [Extracted from supporting documents submitted by the Applicant.]
030810:  Applicant to confinement at Marine Corps Air Station, Beaufort, SC. [ Extracted from pretrial confinement letter dated 030813, submitted by the Applicant . ]

030812:  Applicant transferred to NAS Jacksonville Brig. [ Extracted from pretrial confinement letter dated 030813 , submitted by the Applicant.]

030813:  Pretrial confinement.

 031001:  NJP for violation of UCMJ, Article 83:
 Specification: In that Airman Apprentice J_ A. P_(Applicant), U.S. Navy, Transient Personnel Unit, Jacksonville, Florida, on active duty, did, at or near New York, New York, on or about 23 March 02, by means of knowingly false representations that he had no prior police record, when in fact he had a police record that he had concealed to procure himself to be enlisted as an Airman Recruit in the U.S. Navy, and did thereafter, at recruit Naval Training Command, Great Lakes, Illinois, Naval Air Station Pensacola, Florida, and at Marine Corps Air Station Beaufort, South Carolina, receive pay and allowance under the enlistment so procured.
Violation of UCMJ, Article 92:
 Specification: In that Airman Apprentice J_ A. P_(Applicant), U.S. Navy, Transient Personnel Unit, Jacksonville, Florida, on active duty, did, at or near Marine Corps Air Station Beaufort, South Carolina, on or about 10 August 2003, having knowledge of a lawful order (Air Station Order 5300.10) issued by Commanding Officer Marine Corps Air Station Beaufort, South Carolina, which prohibits possession of an unregistered weapon, an order which it was his duty to obey, did at Marine Corps Air Station Beaufort, South Carolina, fail to obey the same by possessing a knife underneath the driver’s seat of his vehicle.
Violation of UCMJ, Article 134:
 Specification: In that Airman Apprentice J_ A. P_(Applicant), U.S. Navy, Transient Personnel Unit, Jacksonville, Florida, on active duty, did, at or near Marine Corps Air Station Beaufort, South Carolina, on or about 10 August 2003, wrongfully communicate to Aviation Maintenance Administrationman First Class D_ W. S_ a threat to injure Airman R_ L. C_, to wit: AA P_(Applicant) stated to AZ1 S_ “that b____ will pay when I get out of this place.”
         Award: Forfeiture of $575 per month pay for 1 month, restriction and extra duty for 45 days, reduction to E-1. Appealed. Appeal denied 031105.
031008:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct - pattern of misconduct and misconduct - commission of serious offense. [Extracted from supporting documents submitted by the Applicant.]
031008:  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 and to submit written statements. [Extracted from supporting documents submitted by the Applicant.]

031106:  Commanding Officer, Transient Personnel Unit, Jacksonville, FL recommended discharge with a characterization of general (under honorable conditions) by reason of misconduct - commission of a serious offense and misconduct - pattern of misconduct. Commanding Officer’s comments: “Airman Recruit P_(Applicant) has no potential for further naval service.” [Extracted from supporting documents submitted by the Applicant.]
Service Record did not contain the Administrative Discharge package.
 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 20031118 by reason of misconduct due to a pattern of misconduct (A and B) with a service characterization of general (under 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).
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. A general 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 83 (fraudulent enlistment), 92 (failure to obey order, regulation), and 134 (2 specs, false or unauthorized pass offense and communicating a threat) of the UCMJ. 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. The summary of service clearly documents that a pattern of misconduct was the reason the Applicant was discharged. No other Narrative Reason for Separation more clearly describes why the Applicant was discharged. To change the Narrative Reason for Separation would be inappropriate. Relief based on this issue 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 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 other evidence related to his discharge at that time. 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, Articles 83 (fraudulent enlistment), 92 (failure to obey a lawful order), and 134 (communicating a threat).

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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