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

  ex-FN, USN
Docket No. ND03-00273

Applicant’s Request

The application for discharge review, received 20021205, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions.  The Applicant requested a personal appearance discharge review before the Board in the Washington National Capital Region or before a traveling panel closest to  (left blank).  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area.  The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20031017.  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/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

“1. To Whom It May Concern:
Recently I received another Than Honorable discharge through the U.S. Navy after serving three years.  I feel the discharge was unjust because it was given to me by a Master Chief when I got to a new command.  I was placed in a command called T.P.U, TRANSIT PERSONAL UNIT, on the Naval Base of San Diego after serving 50 days in the brig.  I was for three months waiting for a board to determine where they were going to send me.  Then I was called to an office of a Master Chief, I was told that I was not going to the board because I signed a board waiver back at my trial.  He said he was going to give me an other than Honorable discharge based on my military record and because he felt that I didn’t deserve an Honorable Discharge like he had received years back.  I feel I deserve a discharge up grade which will allow me to use my Montgomery G.I. bill for school and a hearing from a board, not a hearing from one justice person.   

2. I also need to know how I can get my RE CODE 4 upgraded.

Thank you for taking the time out to read and consider the requests that I have submitted, it is highly appreciated.
Sincerely B_ B_" 

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Inactive: USNR (DEP)	990611 - 990623	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  990624		Date of Discharge:  020628

Length of Service (years, months, days):

	Active:    03  00  05	Does not excluded lost time
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  36

Highest Rate:  FN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  1.00 (1)	Behavior:  1.00 (1)		OTA:  1.17

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  32

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

010302:	NJP for violation of UCMJ, Article 91: Disrespectful in language toward a second class petty officer on 010127.
	Award: Forfeiture of $200 per month for 1 month, restriction and extra duty for 20 days.  No indication of appeal in the record.

010714:	Summary Court-Martial:
	Charge I: violation of the UCMJ, Article 86:
	Specification: Absent from unit on 010624 to 010716 (32 days/surrendered).
	Charge II: violation of the UCMJ, Article 89:
	Specification: Disrespect toward the CO
	Charge III: violation of the UCMJ, Article 90:
	Specification: Willful disobedience of a lawful command from a LCdr.
	Charge IV: violation of the UCMJ, Article 91 (2 specs)
	Specification 1 and 2: Willful disobedience of a lawful order from a PO1 and a PO2.
	Finding: to Charge I, II, III, and IV, and the specifications thereunder, guilty.
	Sentence: Confinement for 30 days, reduction to FR.
	CA action 010730:  Sentence approved and ordered executed.

010724:	Applicant to confinement.

010818:	Applicant from confinement and returned to full duty status.

020128:	Special Court Martial:
	Charge I: violation of the UCMJ, Article 86:
	Specification: Go from appointed place of duty on 011006, to wit: forward lookout watch (under instruction).
	Charge II: violation of the UCMJ, Article 91 (2 specs):
	Specification 1: Assault Boatswain’s Mate Third Class by pushing him on 011006.
	Specification 2: Willfully disobeyed lawful order on 011015, to wit: to remove his hairpiece from under watch cap.
	Charge III: violation of the UCMJ, Article 92:
	Specification: Derelict in the performance of those duties in that he willfully failed to stand watch under instruction in the proper manner on 011006.
	Findings: to Charge I, II, and III and specifications thereunder, guilty.
	Sentence: Forfeiture of $700 per month for3 months, confinement for 90 days.
	CA Unknown.

020523:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

020523:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

020612:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

020614:	Commander, Navy Region Southwest directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020628 under other than honorable conditions for misconduct due to commission of a serious offense (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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).

Issue 1:  The Applicant stated that he felt his discharge was unjust because a Master Chief gave it to him when he reported to his new command.

While you were assigned to the Transit Personnel Unit (TPU) your discharge paperwork was being processed through the proper channels.  Your Commanding Officer forwarded his recommendation to the Commander, Navy Region Southwest who was the ultimate deciding factor in your discharge.  The Master Chief at TPU helped to facilitate paperwork relating to your discharge and informed you that you would not receive a Discharge Review Board since you waived all of your rights to a board on 23 MAY 02.
Further the Master Chief provided verbal confirmation of the discharge awarded to you by Commander, Navy Region Southwest.

Issue 2.  The Applicant stated that he needed to know how to upgrade his RE-4 code.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  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.  However, only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

The following is provided for the edification of the Applicant.  A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a Sailor.  The record is devoid of any evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The Applicant’s service record is marred by award of non-judicial punishment (NJP), a Summary Court Martial, and a Special Court Martial.  The Applicant’s summary of service clearly reflects the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, and demonstrated he was unsuitable for further service. An upgrade to general (under honorable conditions) or honorable would be inappropriate.  Relief denied.

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 additional documentation to support any claims of post-service accomplishments 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), Change 31, dated 20 Feb 01, effective 25 Jan 01 until 21 Aug 02, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 "afls14.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023