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

  
ex-HR, USN
Docket No. ND04-00999

Applicant’s Request

The application for discharge review was received on 20040604.  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 20050107.  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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1. I D_ D_ Y_, respectfully request a change in my military discharge status.  I entered the U.S. Navy as a married twenty (20) year old with a child.  I had every intention of retiring from the U.S. Navy.  How, ever, at or around the time of my discharge, my mom died, my apartment flooded, forcing my wife and two kids, (H_ and D_) back to Mississippi.  I was also robbed in Mayport, Florida.  I was young and unable to cope with these issues.  So, I lied and wrote threatening letters to intentionally get discharged.  I did not realize the importance of and Honorable Discharge at that time.  I did no harm to anyone; I had no intentions of doing harm to my shipmates.  Since leaving the military, I have become a Police Office, as well as an Emergency Medical Technician.  I have served in leadership and Supervisory Positions.  I have made attempts to re-enlist in the reserves because I am in nursing school.  I was advised that my RE-CODE was ineligible for enlistment.  I am a firm believer in the military.  I served as platoon leader at the Police academy and was made supervisor because of my discipline, integrity and professional appearance. My co-workers, most reservist, talk of their careers and go to drill once a month.  I have to keep silent and only wish I could put back on a uniform. (see attached)

2. I shed tears because it hurts not being able to re-enlist, or talk to my kids about my career.  Please allow me a second chance at living as and honorable service member.  I have enclosed copies of various awards and certificates.  I am not a bad person and I would not harm anyone.  My life since the military has been dedicated to public service and the Health, Safety and well-being of others.  I received the foundation of my career and my code of conduct from the U.S. Navy.  After reviewing this letter and documents, please consider a change in my Discharge status.  I did not verbally or physically hurt anyone or threaten anyone.  I simply wrote a letter and lied about smoking marijuana.  The test was negative.  I have never smoked in my life.  Please review my records.

Sincerely,
(Signed)
D_ D_ Y_ Sr. (Applicant)
SSN deleted

Documentation

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

Copy of Certificate of Completion (Mississippi Department of Corrections Training Academy 240 hours) dated December 23, 1999
Copy of Certificate of Achievement (Emergency Medical Technician) dated July 5, 1997
Copy of Certificate of Completion (Emergency Medical Technician Intermediate) dated February 20, 1999
Copy of Class Leader Outstanding Performance Certificate from Mississippi Department of Corrections Training Academy dated December 23, 1999
Copy of Certificate of Completion (14 weeks Basic Law Enforcement) Jackson Police Department Training Academy
Family Photo
Applicant’s DD Form 214
Copy of Administrative Decision from VA Regional Officer (2 pages)
Copy of Applicant’s Request for General Discharge (2 pages)
Copy of Commanding Officer’s Recommendation for Administrative Separation 
Copy of Enlistment Performance Record 
Copy of Notification of Administrative Board Procedures Proposed Action

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	901227 - 910107	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  910108		Date of Discharge:  930802

Length of Service (years, months, days):

	Active:    02  05  13 (Accounts for lost time.)
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  38

Highest Rate:  HN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (2)	Behavior:  4.00 (2)		OTA:  4.00

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  48

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

930517:	Unauthorized absence from USS MONTEREY (CG-61) at NAVSTA MAYPORT.

930524:	Surrendered onboard USS MONTEREY (CG-61) 1300, 930524.

930528:	Unauthorized absence from USS MONTEREY (CG-61) at NAVSTA MAYPORT.

930617:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 930528 having been an unauthorized absentee since 0930, 930528 from USS MONTEREY (CG-61).

930628:	Surrendered onboard Naval Air Station, Meridian, MS at 1330.  Returned to USS MONTEREY (CG-61) 930629 on TAO’S.

930701:	NJP for violation of UCMJ, Article 86: Unauthorized absence.
	Award:  Restriction to the limits of USS MONTEREY (CG-61) for 37 days, extra duty for 37 days, reduction to E-2.  No indication of appeal in the record.

930702:	Unauthorized absence from USS MONTEREY (CG-61) at Mayport as of 0615, 930702.

930706:	Surrendered onboard USS MONTEREY (CG-61) at 0530, 930706.
	 
930706:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by punishment under the UCMJ for violation of Article 86, Unauthorized Absence from 0900 930528 to 1300 930628 a period of about 32 days.

930706:	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 submit statements on own behalf either verbally or in writing, the right to obtain copies of the documents used to support the basis for the separation.  Applicant did not object to separation.

930708:	NJP for violation of UCMJ, Article 86: Absent without leave.
	Award:  Reduction to E-1.  No indication of appeal in the record.

930708:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

930728:	BUPERS 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/LAW

Discussion

The Applicant was discharged on 19930802 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 records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

Issues 1-2:  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the Applicant’s enlistment.  While he may feel that his family problems were contributing factors, they do not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service.  His service record is marred by award of nonjudicial punishment (NJP) on two separate occasions for three violations of the UCMJ, Article 86 totaling 48 days thus substantiating the misconduct.  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. 

 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.  The Board noted, since discharge, the Applicant has demonstrated numerous accomplishments and good citizenship.  However, at this time, the Board determined that the documentation submitted by the Applicant does not mitigate his misconduct while on active duty. 

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 5, effective 
05 Mar 93 until 21 Jul 94, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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 II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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

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

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