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

  ex-MSSA, USN
Docket No. ND04-01463

Applicant’s Request

The application for discharge review was received on 20040921.  The Applicant requested the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requested a personal appearance hearing before the board in the Washington, D.C. Metropolitan area.  In the acknowledgement letter, the Applicant was informed the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.  The Applicant did not list a representative on his 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/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Applicant’s issues, as stated on the application:

1.  “I, T_ T. R_ (Applicant), feel that I deserve a second chance in the Navy.  I made a lot of immature decisions then.  I’m older & mature now.  I regret the first opportunity I wasted while in the Navy.  I’m asking for a second chance to rejoin the Navy so I can make it up to my country.  I was discharge due to a issue concerning my rank on the USS Kitty-Hawk, an incident that resulted in me getting discharged from the Navy.”

Documentation

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

Applicant’s DD Form 214.  (Member-4)
Applicant’s letter stating Post-Service information, dated October 28, 2004

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	010530 - 010605	COG
	Active: 			None			HON

Period of Service Under Review:

Date of Enlistment:  010606		Date of Discharge:  030513

Length of Service (years, months, days):

	Active:    01  11  08 (Doesn’t exclude lost time)
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  40

Highest Rate:  MSSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  1.33 (3)	Behavior:  1.00 (3)		OTA:  1.56

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, NMCOSR, MUC

Days of Unauthorized Absence:  Per the discharge package – 18 days (6 of the 18 days cannot be verified by service record.  Additionally, since the Applicant was discharged in absentia, it appears when he was transferred back to the States, he never reported to the TPU and 26 days later the TPU discharged in absentia).

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:

020228:	NJP for violation of UCMJ, Article 86:  Unauthorized absence.
	Award: Forfeiture of $553.00 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

020228:	Retention Warning:  Advised of deficiency (UCMJ, Article 86: Unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

020425:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 86 (5 Specifications):  Unauthorized absence for a total period of 13 hours.
	Finding:  Guilty
	Sentence:  Restriction for 15 days and hard labor without confinement (suspended for six months).
	CA action 020408:  Sentence approved and ordered executed, but the execution of that part of the sentence extending to 15 days hard labor without confinement is suspended for 6 months, at which time, unless the suspension is sooner vacated, the suspended part of the sentence will be remitted without further action.  The record of trial is forwarded to the Staff Judge Advocate, Commander Carrier Group FIVE for review in accordance with Article 64 (a), UCMJ.

020830:	NJP for violation of UCMJ, Article 86:  Unauthorized absence for a total period of 12 days.
Award:  Twenty-one days confinement at Correction Custody Unit.

021009:	NJP for violation of UCMJ, Article 91:  Willful disobedience of a petty officer; violation of UCMJ, Article 92:  Failure to obey lawful general regulation.
	Award: Forfeiture of $100.00 per month for 1 month, restriction and extra duty for 15 days.  No indication of appeal in the record.

030405:	NJP for violation of UCMJ, Article 92 (2 Specs):  Failure to obey order or regulation.
	Award: Forfeiture of $675.00 per month for 2 months, restriction and extra duty for 30 days, reduction in rate E-1.  No indication of appeal in the record.

030405:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to a serious offense.

030405:	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 

030407:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.  Commanding Officer’s comments:  ……MSSR R_ (Applicant) meets the requirements for administrative processing for pattern of misconduct and commission of a serious offense.  He has continually proven that he is incapable of conforming to the most simple and basic military duties.  He has been counseled repeatedly and the chain of command has given him every opportunity, but he has chosen to fail.  He does not have the potential for future honorable service.  Therefore, I recommend that he be discharged under Other than Honorable conditions.

030408:	Commander, Carrier Group FIVE, authorized the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

030417:	Transferred to TPU Norfolk.  [Appears upon transfer to TPU Norfolk – Applicant went UA and remained UA until his discharged in Absentia on 030513, thus having an additional 26 days of UA].

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030513 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 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 his immaturity was a contributing factor to his misconduct, it does not mitigate the Applicant’s disobedience of the orders and directives regulating good order and discipline in the naval service.  His service record is marred by the awarding of nonjudicial punishment (NJP) on four separate occasions and a conviction at Summary Court-Martial for unauthorized absence, insubordinate conduct, and failure to obey orders thus substantiating his misconduct, and demonstrating he was unsuitable for further service.  It must be noted most Sailors serve honorably; thereby, earning their honorable discharges.  In fairness to those Sailors, commanders and separation authorities are tasked to ensure the undeserving receive no higher a service characterization than is due.  An upgrade to general (under honorable conditions) would be inappropriate.  Relief denied.  

Concerning the Applicant’s desire “for a second chance to rejoin the Navy so I can make it up to my country,” 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 during the processing of a formal application for enlistment through a recruiter.  This issue does not serve to provide a foundation upon which the Board can grant relief.    

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 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, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.   The Applicant did not provided sufficient documentation of good character and conduct to mitigate his misconduct while on active duty.  Relief denied.
 
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 additional documentation to support any claims of post-service accomplishments 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), re-issued October 2002, effective 22 Aug 2002 until Present, 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 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