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

 ex-SA, USN
Docket No. ND03-00831

Applicant’s Request

The application for discharge review was received on 20030407.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing before the board in the Washington National Capital Region.  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) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040303.  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)/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.  “To Whom it my cause

I was in the U.S. Navy for 3 yrs’ the best time of my life.  I know that the Military is not everyone but it was for me.  I’m only 26 yrs and I when like to have a try at it.  It is not easy for me out here in the world, But I will make it and I just hope to go back into the military it was the best thing that have to me.

I hope that you can help.

T_ N_ (Applicant)”

Applicant marked the box "I PREVIOUSLY SUBMITTED AN APPLICATION ON (Enter date) [left blank] AND AM COMPLETING THIS FORM IN ORDER TO SUBMIT ADDITIONAL ISSUES.  No application found.

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)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	990719 - 990809	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  990810		Date of Discharge:  020604

Length of Service (years, months, days):

	Active:    02  09  25
	Inactive:  None

Age at Entry:  23			Years Contracted:  4

Education Level:  12			AFQT:  43

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.67 (3)	Behavior:  2.33 (3)		OTA:  2.56

Military Decorations:  None

Unit/Campaign/Service Awards:  BER (3), SSDR, AFEM, NDSM

Days of Unauthorized Absence:  None

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

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

Chronological Listing of Significant Service Events:

001113:	NJP for violation of UCMJ, Article 86 (5 specs): 
Specification 1: Fail to go at time prescribed to appointed place of duty on 0700, 001002, to wit: Academic Skills class.
Specification 2: Fail to go at time prescribed to appointed place of duty on 0700, 001006, to wit: Academic Skills class.
Specification 3: Fail to go at time prescribed to appointed place of duty on 0700, 001010, to wit: Academic Skills class.
Specification 4: Fail to go at time prescribed to appointed place of duty on 0700, 001018, to wit: Academic Skills class.
Specification 5: Fail to go at time prescribed to appointed place of duty on 0700, 001019, to wit: Academic Skills class.
	Award: Restriction and extra duty for 15 days.  No indication of appeal in the record.

001122:	Retention Warning: Advised of deficiency (Unauthorized absence which began at 0700 on 001002.  Unauthorized absence which began at 0700, 001006.  Unauthorized absence which began at 0700, 001010.  Unauthorized absence which began at 0700, 001018.  Unauthorized absence which began at 0700, 001019.  Failed to go to Academic Skills class on all three occasions.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

010117:	Commanding Officer request waiver for fraudulent enlistment of Applicant.

010215:	CNPC approves retention.  Prepare page 13 counseling/warning.

010216:	Retention Warning: Advised of deficiency (Failure to disclose all required information for entry into the naval service.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

010319:	Charge sheet:  Article 91: Insubordinate conduct, to wit: disrespectful in deportment towards CMDMC(SW/AW/NAC) J_ D_ a Chief Petty Officer by pointing his hand into CMDMC(SW/AW/NAC) J_ D_’s face on 010318.  Article 92: Fail to obey a lawful general order on 010318, to wit: remove his hand from CMDMC (SW/AW/NAC) J_ D’s face and to be quiet.  Applicant refused to sign.

010330:	NJP for violation of UCMJ, Article 91: Insubordinate conduct towards a petty officer on 010318, violation of UCMJ, Article 92: Failure to obey a lawful order on 010318.
	Award: Restriction and extra duty for 45 days, reduction to SA.  Suspended for 6 months.  No indication of appeal in the record.

011022:	NJP for violation of UCMJ, Article 91: Insubordinate conduct towards a petty officer, violation of UCMJ, Article 92: Failure to obey a lawful order on 020815.
	Award: Forfeiture of 1/2 months’ for 2 months, restriction and extra duty for 45 days, reduction to SA.  Forfeiture suspended for 6 months.  No indication of appeal in the record.

020107:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by all punishments under the UCMJ in your current enlistment and by reason of misconduct due to commission of a serious offense.

020107:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

020220:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to a pattern of misconduct, that the misconduct warranted separation, and recommended discharge with a characterization of general (under honorable conditions).

020222:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and commission of a serious offense.

020528:	COMCARGRU TWO directed the Applicant's discharge with a characterization of general (under 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 20020604 with a characterization of general (under 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 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.  However, 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 during the processing of a formal application for enlistment through a recruiter. 

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 the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  Evidence of continuing educational pursuits, a positive employment record, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.   

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 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