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

 
ex-FN, USN
Docket No. ND03-01374

Applicant’s Request

The application for discharge review was received on 20030813.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  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 20040628.  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

Applicant’s issues, as stated on the application:

1.  “My Discharge was inequitable because it was based on an incident that I did intentionally to get discharged from the Navy because of being influenced by a woman claiming to be pregnant but was not. I had a good record in the Navy and was in good physical condition and I am in better condition today. I do not do drugs. I have a respectable job making 40 thousand dollars a year and have two kids that I support responsibly. I had almost 3 yrs. In the Navy and just made third class petty officer when this incident occurred. I regret everything I did to get out and I wish I could chance things and do it all over again the right way but you only have the ability to make that decision for me. I wish you would consider giving me a second chance to serve my country. I Loved my job and I Loved the military while I was in. I now go to church and don’t smoke or drink. I hope that you can forgive mc the way I know Jesus has forgave me. Thank you.”

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	970131 - 970209	COG
	Active:   None
Period of Service Under Review:Date of Enlistment:  970210		Date of Discharge:  991029Length of Service (years, months, days):	Active:    02  07  24	Inactive:  00 00  00Age at Entry:  19			Years Contracted:  4Education Level:  12			AFQT:  37Highest Rate:  FNFinal Enlisted Performance Evaluation Averages (number of marks):Performance:  3.00 (2)	Behavior:  2.00 (2)		OTA:  2.43Military Decorations:  NoneUnit/Campaign/Service Awards:  AFSM, SSDR, AFEM, NER, MUCDays of Unauthorized Absence:  27Character, 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:990916:	NJP for violation of UCMJ, Article 86 (2 Specs): Unauthorized absence, violation of UCMJ Article 87 (2 Specs): Missing ship’s movement, violation of UCMJ Article 134: Incapacitated for duty.Award: Forfeiture of $537 per month for I month, restriction and extra duty for 45 days, reduction to E-2.   (Suspended for 6 Months). No indication of appeal in the record.990923:	NJP for violation of UCMJ, Article I 12A: Wrongful use of a controlled substance, To Wit: Marijuana.Award: Forfeiture of $537 per month for I month, reduction to E-2. No indication of appeal in the record.990926:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to drug abuse.990926:	Applicant advised of his rights and having elected not to consult, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.990927:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. Commanding Officer’s comments: FA V_ (Applicant) misconduct is incompatible with Naval service. I have determined that FA V_ (Applicant) has no potential for future service and recommend that he be administratively separated with an other than honorable discharge.991001:	NJP for violation of UCMJ, Article 86: Failure to go to prescribed place of duty at appointed time.Award: Forfeiture of $100 per month for 1 month.  Forfeiture suspended for 6 months.  No indication of appeal in the record.991002:	Command, Cruiser-Destroyer Group EIGHT 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/LAWDiscussionThe Applicant was discharged on 19991029 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 available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).Issue I.  When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  Characterization of service as other than honorable 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 3 occasions for violations of the Uniform Code of Military Justice (UCMJ).  The Applicant’s misconduct included unauthorized absence, missing ship’s movement, incapacitated for duty, and wrongful use of a controlled substance.  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 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.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, effective12 Dec 97 until 29 March 2000, Article 1910-142 [formerly 3630605]. SEPARATIONBY REASON OF MISCONDUCT- COMMISSION OF A SERIOUS OFFENSE.B.  Secretary of the Navy Instruction 5420. 1 74C 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 APPLICANTIf 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