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

 
ex-FR, USN
Docket No. ND04-00744

Applicant’s Request

The application for discharge review was received on 20040330.  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 review was conducted in Washington, D.C. on 20041103.  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/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.  “Due to my previous service record, I am not allowed to Re-enlist I feel I have matured a great deal and would love the chance to serve my country and make thing right.”

Documentation

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

REDD Response, dated July 12, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	990630 - 990712	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  990713			Date of Discharge:  000525

Length of Service (years, months, days):

	Active:    00  10  13	(Does not exclude lost time)
	Inactive:  None

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

Education Level:  12				AFQT:  59*

Highest Rate:  FR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.00 (1)	Behavior:  1.00 (1)		OTA:  1.83

Military Decorations:  None

Unit/Campaign/Service Awards:  NER

Days of Unauthorized Absence:  112

*Extracted from supporting documents provided by the Applicant

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

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

Chronological Listing of Significant Service Events:

991201:	Applicant to unauthorized absence 0800, 991201.

000130:	Applicant from unauthorized absence 2100, 000130 (60 days/surrendered).

000224:	NJP for violation of UCMJ, Article 86 (3 specs): (1) Unauthorized absence from 0800, 991202 until 2100, 000130 (60 days), (2) Unauthorized absence from 0700, 000208 until 0715, 000211 (3 days), (3) Unauthorized absence from 1300, 000214 until 0715, 000216 (1 day), violation of UCMJ, Article 87 (3 specs): (1) Missing ship’s movement on 000119, (2) Missing ship’s movement on 000125, (3) Missing ship’s movement on 000215.
	Award: Forfeiture of $502 per month for 2 months (1 month suspended for a period of 6 months), restriction and extra duty for 45 days.  No indication of appeal in the record.

000224:	Retention Warning:  Advised of deficiency (Your nonjudicial punishment on 000224, for violation of the UCMJ, Article 86: Unauthorized absence and Article 87: Missing ship’s movement.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

000220:	Applicant to unauthorized absence 1300, 000228.

000416:	Applicant from unauthorized absence 2005, 000416 (48 days/surrendered).

000427:	Vacate suspended forfeiture awarded at CO’s NJP dated 000224 due to continued misconduct.

000427:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 1300, 000228 until 2005, 000416, violation of UCMJ, Article 87 (5 specs): (1) Missing ship’s movement on 000229, (2) Missing ship’s movement on 000307, (3) Missing ship’s movement on 000329, (4) Missing ship’s movement on 000403, (5) Missing ship’s movement on 000410, violation of UCMJ, Article 112a: Wrongful use of marijuana; violation of UCMJ, Article 134: Break restriction.
Award: Forfeiture of $502 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

000504:	Applicant notified of intended recommendation for discharge with a least favorable characterization of under other than honorable conditions by reason of misconduct due to a pattern of misconduct, misconduct due to commission of a serious offense, and misconduct due to drug abuse.

000504:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights.

000510:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, misconduct due to commission of a serious offense, and misconduct due to drug abuse.  Commanding Officer’s comments (verbatim): IAW MILPERSMAN 1910-140, 1910-142, 1910-146, FR T_ (Applicant) is militarily unsuitable for retention due to his numerous violations of the UCMJ and for his admission of marijuana use while in a unauthorized absence status.  FR T_ (Applicant) is a detriment to good order and discipline.  Based on his misconduct a characterization of Other Than Honorable (OTH) is most appropriate.

000519:	COMPHIBGRU THREE 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 20000525 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).

Issue 1:  Normally, to permit relief, an impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 two nonjudicial punishment proceedings for violations of Articles 86, 87, 112a, and 134 of the UCMJ.  The evidence of record indicates that the Applicant was in an unauthorized absence status for 112 days, that he missed ship’s movement no less than 8 times, admitted to illegal drug use, and broke restriction.  The evidence of record does not demonstrate that the Applicant was not responsible for his misconduct or that he should not be held accountable for his actions.  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 and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

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, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any documentation for the Board to consider.  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.  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 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