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

ex-AR, USN 
Docket No. ND04-00740

Applicant’s Request

The application for discharge review was received on 20040405.  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 review was conducted in Washington, D.C. on 20040224.  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.  “To Whom It May Concern:

My name is D_ R_ (Applicant).  I was enlisted in the Navy during 2000-2002.  I was discharged with an Other Than Honorable discharge.  I am writing this letter with the hope that I might be able to have my discharge upgraded to Honorable.  I would first like to take a chance to inform you of the reason(s) for my discharge.

My first time getting into trouble was while I was in Aviation Electrician School in Pensacola Florida.  I was working barracks support during the week.  There was an undesignated Airman (E-3) in charge of the barracks support.  There were constant times where he and I did not get along well.  For the most part I kept my mouth shut and took everything that happened.  There was a point in time where I got tired of it and mouthed off to him.  I cannot recall the exact words that I chose but I know they were not professional.  I was then written up and sent to OIC (Officer In Charge) Mast as my form of Non-Judicial punishment.  The Officer In Charge suspended my consequences for six months.

My second time was about six months down the road.  I was stationed in Lemoore, California attached to squadron VFA-151 (Vigilantes).  I had taken about two weeks of emergency leave because my grandma was not doing too well.  About two days before I was due to be back in California my car broke down.  I failed to call my squadron and inform them of this.  My CMC (Command Master Chief) called me at home and I informed him of what happened.  I came home about 7 days late.  When I got back all my shipmates in my division were telling me I was going to go to Captains Mast once again.  Around that time my grandmother passed away and I went through a lot of problems and gave up on things.  I did not come into work for two days.  At that point I was wrote up once again.  I went to Captains Mast and was given forty-five days extra duty.

The third time I encountered a problem I was on the USS Constellation attached to VFA-151.  There was a Third Class Petty Officer who had a few problems with me while I was there.  I was walking through the galley and did not notice him and accidentally bumped into him.  He claimed that I knew that he was there and told one of my division chiefs about the incident.  I was written up for assault.  I had a witness who saw the incident and I told my Aviation Maintenance Officer (AMO) about him.  My AMO told me that my witness would not be used because he went AWOL after school and did drugs.  There was no proof that my witness had done any drugs, he did go AWOL after school though.  So my witness was not used.  I went to Captains Mast and was given an Other Than Honorable discharge.

After this time my Division Chief and Command Master Chief came to me and asked me if I really wanted to stay in the Navy.  I told them yes that I wanted to stay in more than anything.  They then talked to my Commanding Officer and he decided to put me in the second chance program.  I would remain in the Navy but I would be placed in a different squadron.  I would have to serve thirty days in restriction.  On my second day in restriction (we were back in Lemoore at this time) people decided to “initiate” me and have a pillow fight after lights out.  I got mad and left.  At that time my second chance program was revoked.  I was constantly into conflicts with people in restriction.  I went to Captains Mast in front of the Commanding Officer of the Lemoore Naval Base.  I was reduced in rank to an E-I and fined one-half months pay for two months, I was discharged from the Navy in August of 2002.

I went into the Navy at the age of seventeen.  I was young and immature.  I admit that I had a problem with authority.  It has taken me being out of the Navy for almost two years to realize what a great thing I had.  I regret every mistake I made while I was in the Navy.  I am writing this in hopes that I may be given a second chance to represent my country with the honor, the courage, and the commitment that I lacked in my first enlistment.  I know that I did a lot of things that were not very positive in my prior enlistment but I would like to be given a chance to make up for what I did.

Sincerely,

D_ M. R_ [signed] (Applicant)
(Social Security Number deleted)”

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)	010209 - 010211	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  010212			Date of Discharge:  020820

Length of Service (years, months, days):

	Active:    01  06  09
	Inactive:  None

Age at Entry:  17 (Parental Consent)	Years Contracted:  4

Education Level:  10				AFQT:  76

Highest Rate:  AA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF*				Behavior: NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  7

*No marks found in service record

Character, 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:

020315:	Applicant commenced a period of unauthorized absence this date.

020322:	Applicant surrendered from unauthorized absence this date.

020417:	NJP for violation of UCMJ, Article 86 (2 specification):  Absent from place of duty.
	Award:  Forfeiture of $552.00 pay per month for 1 month, extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

020417:	Retention Warning:  Advised of deficiency (Violation of the UCMJ Article 86, unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

020605:	NJP held this date.  [Extracted from NAVPERS 1070/604.]

020723:	NJP for violation of UCMJ, Article 91:  Insubordinate conduct toward warrant officer, noncommissioned officer or petty officer; violation of UCMJ Article 128:  Assault.
	Award:  Restriction for 30 days.  No indication of appeal in the record.

020813:	NJP held this date.  [Extracted from NAVPERS 1070/604.]

020816:	Commander, Cruiser Destroyer Group One, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

Complete discharge package unavailable

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020820 under other than honorable conditions for misconduct due to commission of a serious offense (A).  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 (B and C).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).

Issue 1:  Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question.  No such impropriety or inequity is evident during the Applicant’s enlistment.  When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  An under other than honorable conditions discharge 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 insubordinate conduct towards superiors, assault and unauthorized absence.  This misconduct resulted in four separate nonjudicial punishment proceedings for violations of UCMJ Articles 86, 91, and 128.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy.  Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service.  Relief is not warranted.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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 31, dated 20 Feb 01, effective 25 Jan 01 until 21 Aug 02, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023