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

 ex-YNSN, USN
Docket No. ND04-00855

Applicant’s Request

The application for discharge review was received on 20040428.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable or 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 20050118.  After a thorough review of the available 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:

1.  “To whom it may concern:

The purpose of this letter is to upgrade my discharge from other than honorable to possibly re-enter the United States Armed Forces.  Service member was discharged on 04 June 2002 for the following reason: Misconduct.

Around early September 2001, Subject Name Member (SNM) L_ V_ S_ (Applicant) was stationed on board the USS John L.Hall (FF0 32) in Pascagoula, MS.  During this period the ship was schedule for a two and one half week deployment cruise to Norfolk, VA for weapons unload.  Well one particular morning in September 2001, SNM had just arrived at Naval Station Pascagoula, when SNM received a phone call from SNM’s spouse in which she was sounding extremely upset.  After receiving the phone call, SNM went to the pier of the USS John L.  Hall (FF0 32) where he then told PC1 M_ he had a family emergency and had to return home, but would return before ship departure at 0900.  Well approximately around 0830, SNM tried to make several attempts to contact the ship, but was unsuccessful.  SMN assumed the ship departed earlier than expected and SNM missed ship’s movement.  So SNM then went the Commander Destroyer Squadron SIX where SNM then explain the situation to YNC D_ who then notified the ship about my situation.  The Executive Officer of SNM’s ship then advised SNM to remain in Pascagoula, MS and wait for ship’s arrival.

On the day of the ship’s arrival, SNM was given three different times for ships arrival and actually missed the arrival due to having limited transportation.  Not knowing the severity of the situation, SNM was approximately 45 minutes UA for the ship’s arrival.  Upon arriving onboard the ship, SNM spoke with HTC L_ and explain this same situation to him.  From the conversation, SNM was under the impression the situation was resolved.

Well a couple of days later, SNM was called down to the Master at Arms headquarters where then a Report Counseling Chit was issued.  Being clueless to the entire situation SNM then explained the situation again and SNM was advised that SNM had to go to XOI.  From XOI, SNM was then sent to Captain’s mast where SNM then explain the situation to the captain.  Being this was SNM’s first time being on board a ship during my military career, SNM explain to my command as well as my captain that SNM truly felt my behavior and actions during this time period was appropriate.  SNM then received a punishment of 30 day restriction and 30 day extra duty and a forfeiture of one and one half months pay for two months with a suspended bust for six months.

On 1 November 2001, the day SNM actually received my NJP, SNM went UA due to the fact SNM was in the process of submitting an LDO package for the Officer program.  By receiving NJP, this destroyed any possible chances of making LDO for the next few years.  SNM had set extremely high goals for his military career and the NJP that was awarded, basically destroyed them.

During that time period, SNM apologizes for attending to the needs of SNM family’s well being over SNM military commitment.  Not thinking about the consequences at the time, SNM would have never imagined that SNM life would be in so much turmoil as it appears.  SNM is embarrassed for SNM’s family, and for not completing SNM’s military career as obligated.  SNM is deeply sorry for all the extra manpower hours SNM wasted for SNM’s immature behavior, therefore, SNM is asking for an upgrade to possibly serve my country once again especially during this war time situation in which SNM truly misses!” 

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)	931113 - 940123	COG
	Active:  USN 			940124 - 971113	HON

Period of Service Under Review:

Date of Enlistment:  971114		Date of Discharge:  020604

Length of Service (years, months, days):

	Active:    04  06  23
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12			AFQT:  54

Highest Rate:  YN3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.33 (6)		Behavior:  2.83 (6)		OTA:  3.11

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR (3), GCM, HSM, B’E’R (2), MUC

Days of Unauthorized Absence:  174

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:

011102:	NJP for violations of UCMJ, Article 86: Unauthorized Absence from unit 010928 to 011002.  Article 87:  Miss ship’s movement on 010928.  Article 91: Disobeying warrant, noncommissioned or petty officer.  Article 90:  Willful disobedience of superior commissioned officer.
	Award: 30 das restriction, 45 das extra duty and RIR.  RIR susp 6 mos.

Undated:	Retention Warning:  Advised of deficiency (Violations of Articles 86, 91 and 90), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

011102:	Applicant to UA. [Extracted from DD 214]

020417:	Applicant from desertion.  [168 das/S]

020528:	Commander, Naval Surface Group Two directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

Parts of Applicant’s discharge package not available in service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020604 under other than honorable conditions by reason of misconduct due to a pattern of misconduct (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.  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 nonjudicial punishment proceedings for violations of Articles 86, 87, 90 and 91 of the UCMJ.  In addition, the Applicant had an unauthorized absence period of 168 days following his NJP.  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.

The Applicant contends that his problems in the Navy can be attributed to his "attending to his family’s needs."  While he may feel that his family responsibilities were the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural 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.  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, 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.

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 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 5420.174D 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