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

 ex-ACAN, USN
Docket No. ND03-00792

Applicant’s Request

The application for discharge review was received on 20030403.  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 20040408.  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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “Dear Sir or Madam:

In reference to block 8 on DD Form 293, I am writing this letter in the hopes of upgrading my type of discharge from GENERAL (UNDER HONORABLE CONDITIONS) to HONORABLE.

I have two reasons for this request.  My first reason is that after September 11 2001 I have a strong sense of urgency to re-enter the Armed Services so that I may prevent another such attack against our great country.  Second, I am in the process of enrolling at the University of Maryland Asian Division on COMNAVMAR to study Business Administration.  Without an upgrade, I know I will not be able to re-enter the military or receive V.A. educational benefits (the M.G.I.B.) that I contributed to during my military career.

I have two issues that I’d like to address so you may make a fair decision about the changes I am requesting.  They are UCMJ Art. 86 Unauthorized Absence and Involvement with civil authorities.

Regarding the first. On 09 and 10 September 1993, I was in violation of UCMJ Art. 86 Unauthorized Absence.  This was a restricted barracks watch I had two months prior exchanged duty days with a Second Class Petty Officer.  Irresponsibly, I forgot about the duty and went on with my own agenda.  I was sent to Captain’s Mass 22 November 1993 and received the punishment I deserved: 45 days restriction and 45 extra duties.  This was a lesson most definitely learned.

As for the second issue: On 10 May 1994, I had a conviction of driving by a habitual offender when my license was revoked and failure to give a correct name to a police officer.  My reason is that I had, at the time, a problem driving the speed limit.  I was young and always in a hurry.  Although my license was suspended I made, again, an irresponsible decision to continue driving.  At the time I lived alone and had no one to depend upon for rides.  I did not make enough money to purchase a bicycle or pay for cabs so I chose to “risk it”.  I was also too proud to move into the barracks, which would have been the obvious choice.  Besides, I had two part-time jobs and needed my vehicle.  Ultimately, I was caught and rather than take my medicine I lied to the police officers and posed as my twin brother to avoid going to jail.  Unfortunately, after a routine search of my car the truth was exposed and I was cuffed and sent to jail.

With these two issues aside, I wholeheartedly loved serving in the United States Navy.  I loved being an Air Traffic Controller and had set high goals for myself to become “the best”.  I knew I’d overcome my U.A. conviction without any resentment from my peers, however, after my later conviction I knew my training status at NAS Brunswick would come to a halt, and it did.  After many discussions with a senior enlisted petty officer, I chose to request a discharge from the Navy long before I wanted to.  I was too uncomfortable to carry on with my duties at the NAS without being unfairly judged by my peers because of my mistakes.  I was recommended for discharge and I have no doubt in my heart that if I had stuck it out, I could have had a beautiful career in the United States Navy as a Air Traffic Controller.

It has been over 8 years since my discharge and I’ve done everything in my power to keep a clean record and get my life back on track.  To say I’ve learned from my mistakes is an understatement.  I would love nothing more that to join the United States Coast Guard to serve along with my wife, YN3 R_ A_ J_, in defending this great country of ours.

I have extremely high hopes that your timely and fair decision will allow me to re-enter the military and further my education so that I may prove my worthiness.

Thank you for taking the time to review my request and ultimately granting what I am sincerely asking.

Sincerely

M_D_ J_ (Applicant)”

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)	900712 - 901227	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  901228		Date of Discharge:  940819

Length of Service (years, months, days):

	Active:    03  07  22
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  63

Highest Rate:  AC3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: 3.49 (7)	Behavior:  3.11 (7)		OTA:  3.54

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

931122:	NJP for violation of UCMJ, Article 86 (2 specs): Unauthorized absence.
	Award: Restriction and extra duty for 45 days, reduction to ACAN.  No indication of appeal in the record.

940510:	Civil Conviction:  Maine District Court for violation of driving by a habitual offender when license was revoked and failure to give correct name to police officer.
Sentence: Fine $1575.00.

940707:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

940708:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

940713:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

940809:	CNP directed the Applicant's discharge general (under 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 19940819 with a general (under 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:  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the Applicant’s enlistment.  While he may feel that his youth and immaturity were contributing factors, they do not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service.  His service record is marred by award of nonjudicial punishment (NJP) and a civil conviction thus substantiating the misconduct.
Relief denied.  

The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board (NDRB).  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veteran’s benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. 

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.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

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), Change 9, effective 
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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