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

 
 ex-AMSAN, USN
Docket No. ND03-01008

Applicant’s Request

The application for discharge review was received on 20030516.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record 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 20040415.  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.  “I was very young and immature when I entered the Navy.  Since that time, I have been responsible for my actions.  I was UA approximately 7-10 times.  I have no excuse for what I did.  I wish to make the military my career and wish to have my records reflect this.  I am engaged to be married and have a child on the way.  I have matured and realize the importance of being responsible for my actions.  I ask for compassion in granting me the upgrade on my discharge.”

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	970327 - 970721	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  970722		Date of Discharge:  991002

Length of Service (years, months, days):

	Active:    02  02  11
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  29

Highest Rate:  AMSAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF*		Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, AFEM, NATO, NUC

Days of Unauthorized Absence:  10

*No marks found in service record.

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:

981124:	NJP for violation of UCMJ, Article 86 (4 specs): (1) Fail to go to appointed place of duty from 0630-1030, 981121, (2) Fail to go to appointed place of duty from 0830-0920, 981103, (3) Fail to go to appointed place of duty from 1000-1445, 981103, (4) Absent from place of duty on 1500, 1500, 981104 to 0600, 981106 (1 day/surrendered), violation of UCMJ, Article 92: Failure to obey a lawful order on 981103, to wit: to bring his dress blue uniform for inspection.
	Award: Forfeiture of $519 per month for 2 months, restriction and extra duty for 45 days.  Forfeiture suspended for 6 months.  No indication of appeal in the record.

981124:	Retention Warning: Advised of deficiency (CO’s NJP on 981124.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
990728:	NJP for violation of UCMJ, Article 86 (2 specs): (1) Absent from place of duty 1600, 990706 to 1200, 990713 (6 days/surrendered), (2) Absent from place of duty 0730, 990723 to 0730, 990726 (3 days/surrendered).
	Award: Forfeiture of $602 per month for 2 months, restriction and extra duty for 45 days, reduction to AMSAA.  Forfeiture, restriction and reduction suspended for 6 months.  No indication of appeal in the record.

990812:	Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of misconduct due to a pattern of misconduct.

990812:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

990823:	Commanding Officer directed the Applicant's discharge general (under honorable conditions) by reason of misconduct due to a pattern of misconduct.  Commanding Officer’s comments (verbatim): Despite counseling and warning, AMSAN S_ (Applicant) continues to commit misconduct as noted above.  AMSAN S_ (Applicant) is incapable of adhering to the rules and regulations of this command and the U.S. Navy.  He is unwilling to conduct himself in a manner conducive to good order and discipline.  I strongly recommend that AMSAN S_ (Applicant) be separated from the naval service by reason of misconduct due to a pattern of misconduct, and that his characterization of service be General.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19991002 with a 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 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.

When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  Characterization of service as general (under honorable conditions) 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 the award of nonjudicial punishment (NJP) on two occasions for violations of the Uniform Code of Military Justice (UCMJ).  The applicant’s conduct and proficiency markings, which form the primary basis for determining the character of his service, reflect his misconduct, and fall below that required for an honorable characterization of service.  An upgrade to honorable would be inappropriate.  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 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 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