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

 
ex-AOAR, USN
Docket No. ND04-00462

Applicant’s Request

The application for discharge review was received on 20040121.  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  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 20041001.  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 - Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I would like to have my discharge changed to a general discharge due to the fact that I would like to re-enter the military and I can not re-enter with the discharge and reentry code I was given when I was discharged.”

2.  “The reason for my misconduct in the military was because my command told me that my rate had been closed. And that it would not reopen for approximately 3 years. Then I asked if I could cross rate they said that I would have to wait until enlistment was up. I did not think that it was worth doing my advancement books if I was unable to advance.

I apologize for my misconduct, I was young and did not know what my actions would cause at the time. I have grown up and realized that was the biggest mistake of my life. I have since then married and have two children and would like the chance to reenlist in the military. To have the chance to serve my country. I miss the military life and discipline that the military has to offer me and my family. This is why I am requesting a change in my discharge and reenlistment code to be given this opportunity to prove myself to my county.”

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)	900829 - 910715	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  910716		Date of Discharge:  930722

Length of Service (years, months, days):

	Active:    02  00  07	Does not exclude lost time
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  33

Highest Rate:  AOAA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.93 (3)	Behavior:  2.80 (3)		OTA:  2.80

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  1

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Pattern of misconduct, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

910717:	You are being retained in the Naval service, despite your defective enlistment and induction due to fraudulent entry into naval service as evidenced by your failure to disclose your pre-service civil involvement/drug abuse.  6/91 Speeding violation, Howell, NJ (PD $99.00 fine).  6/91 Tinted windows, Freehold Borough, NJ (PD $31.00 fine).  This decision is based on the information you provided the Recruit Quality Assurance Interviewer and if it is found that additional information has not been disclosed, this waiver is void and you could be subject to other judicial or administrative proceedings.  However, any further deficiencies in performance or conduct may result in processing for administrative separation.

920702:	NJP for violation of UCMJ, Article 86 (4 specs): (1) Unauthorized absence from appointed place of duty on 0630-0730, 920612, (2) Unauthorized absence from appointed place of duty on 0630-0642, 920615, (3) Unauthorized absence from appointed place of duty on 0630-0700, 920622, (4) Unauthorized absence from appointed place of duty on 0630-1115, 920629.
	Award: Correctional custody for 30 days, forfeiture of $100 per month for 2 months.  No indication of appeal in the record.

920703:	Retention Warning from USS CONSTELLATION (CV 64): Advised of deficiency (Unauthorized absence from appointed place of duty to wit: Workcenter on 0630-0730, 930612, 0630-0642, 920615, 0630-0700, 920622 and 0630-0730, 920629), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920916:	Retention Warning from USS CONSTELLATION (CV 64): Advised of deficiency (Wrongfully use reproachful words toward an E-2 onboard USS CONSTELLATION (CV 64)), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

930219:	NJP for violation of UCMJ, Article 86 (3 specs): (1) Fail to go to appointed place of duty on 0500, 930106, to wit: Forward mess decks, (2) Unauthorized absence from 0700, 930110 to 1050, 930111 (1 day/surrendered), (3) Fail to go to appointed place of duty on 0700, 930219, to wit: Weapons Quarters, violation of UCMJ, Article 91: Disrespectful in language and deportment towards a PO3 on 930118.
	Award: Forfeiture of $250 per month for 1 month, restriction and extra duty for 30 days, reduction to E-1.  No indication of appeal in the record.

930219:	Retention Warning from USS CONSTELLATION (CV 64): Advised of deficiency (Fail to go to appointed place of duty, to wit: Forward Mess Decks on 0500, 930106, unauthorized absence from 930110 until 930111; fail to go to appointed place of duty on 0700, 930219 and disrespectful in language towards a PO3 on 930118), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

930529:	Report chit: Two liberty cards.

930603:	Report chit: Failed to get 3-M qualified after given the required date of 930603.

930612:	Report chit: Late to morning muster by 20 minutes.  Fourth offense and fourth counseling.  All four were for lateness.

930624:	NJP for violation of UCMJ, Article 86 (2 specs): (1) Fail to go at the time prescribed to appointed place of duty on 930526, (2) Fail to go at the time prescribed to appointed place of duty on 930612; violation of UCMJ, Article 92: Fail to obey a lawful order to become 3-M qualified on 930603.
	Award: Forfeiture of $407 per month for 1 month, restriction and extra duty for 30 days.  No indication of appeal in the record.

930702:	USS CONSTELLATION (CV 64) notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of serious offenses as evidenced by your failure to obey a lawful order to become 3-M qualified on or about 930603 and disrespectful in language and deportment towards a PO3 on 930118 and misconduct due to a pattern of misconduct as evidenced by your three nonjudicial punishments each within the current enlistment, to wit: 930624, 930219, 920702.

930702:	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.

930709:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct.

930716:	BUPERS 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 19930722 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).

Issues 1and 2.  A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor.  The Applicant’s service was marred by award of nonjudicial punishment (NJP) on three occasions and adverse counseling entries on other occasions.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.
  
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’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question.  No such inequity or impropriety occurred during the Applicant’s enlistment.  Additionally, 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, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that may be provided to receive consideration for relief, based on post-service conduct.  The Applicant’s evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his discharge.  Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  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 5, effective 05 Mar 93 until 21 Jul 94), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – A 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