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

 ex-HTFR, USN 
Docket No. ND03-00770

Applicant’s Request

The application for discharge review was received on 20030326.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040224.  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/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I do not believe that my discharge from active duty was improper; in fact I think that I more than deserved to be discharged.
The actions I took that led up to being discharged where immature and idiotic.
The reason that I am trying to upgrade my DD-214 is that I want to join the Navy again; not only to make right my wrongs but I truly want to serve my country.
Especially in a time where even citizens of the United States suddenly decide to turn their backs and protest the way of life that they owe their freedom to.  I am further appealed that after Sept 11th that people would protest against bringing to justice the persons responsible and protecting ourselves from further incidents.
Even if this board does not find me fit of the upgrade I am requesting.  I plan to join the Navy Reserves, but I know that I could serve my country better in the Fleet as an active duty United States Sailor.

Sincerely,
B_ W_ W_ (Applicant)”

Documentation

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

Applicant’s DD Form 214
Applicant’s DD Form 215

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	991027 - 991122	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  991123		Date of Discharge:  010126

Length of Service (years, months, days):

	Active:    01  02  04
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  10			AFQT:  58

Highest Rate:  HTFA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NOB			Behavior:  NOB		OTA:  NOB

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  33

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

Chronological Listing of Significant Service Events:

000810:	NJP for violation of UCMJ, Article 111: Drunken or reckless operation of motor vehicle, violation of UCMJ, Article 92: Failure to obey a lawful order.
	Award: Forfeiture of $503 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

001106:	Applicant to unauthorized absence 1600, 001106

001205:	Applicant from unauthorized absence 0700, 001205 (28 days).

001207:	Applicant to unauthorized absence 0700, 001206.

001210:	Applicant from unauthorized absence 001210 (4 days/surrendered).

001210:	NJP for violation of UCMJ, Article 86 (2 specs): Unauthorized absence, violation of UCMJ, Article 87: Missing movement, violation of UCMJ, Article 92: Failure to obey lawful general order, violation of UCMJ, Article 117 (2 specs): (1) Provoking speeches, (2) Provoking speeches or gestures.
	Award: Forfeiture of $503 per month for 2 months, restriction and extra duty for 45 days, reduction to HTFR.  No indication of appeal in the record.

001213:	Retention Warning:  Advised of deficiency (Unauthorized absence (2 specs) missing movement (3 specs), failure to obey lawful general order, provoking speeches and provoking speeches or gestures.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
010103:	NJP for violation of UCMJ, Article 112A: Wrongful use and/or possession of a controlled substance on 001211.
	Award: Recommend for admin separation and transferred to TPU until board convenes.  No indication of appeal in the record.

010119:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to a pattern of misconduct.

010119:	Applicant advised of 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 

010213:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

010511:	COMPHIBGRU THREE directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010126 under other than honorable conditions for misconduct due to a pattern of misconduct (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 NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy.  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  Relief, is therefore, denied.

The following is provided for the edification of the applicant.  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, however, 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.  

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 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 18, effective
12 Dec 1997 until 21 Aug 2002, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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