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

 
ex-AN, USNR 
Docket No. ND05-00041

Applicant’s Request

The application for discharge review was received on 20041006.  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 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

Issues, as stated

 “My Discharge from the Carl Vinson, was a Pattern of misconduct, it has been a good 6 years since then and since then I have stayed out of trouble I was just young Didn’t know any better I guess I know Different now.  I want to change my discharge if I could I would like to Join again and Do it Right this time Please consider I Just want to have a good Future in the milatory I Just wish it Didn’t have to Be this way.  Everyone Diserves a second chance.  I know I can make something good out of this.  Please give me the chance to do so.  Thankyou So much.”

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)	950913 - 950926	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  950927		Date of Discharge:  981116

Length of Service (years, months, days):

	Active:    03  01  20
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 (08 month extension)

Education Level:  12			AFQT:  42

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF*			Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, NDSM

Days of Unauthorized Absence:  03

*No marks found in the record

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:

950913:	Applicant signed a three year obligation for the Airman Apprenticeship Training Guarantee program.

960802:	NJP for violation of UCMJ, Article 86:  Unauthorized absence, violation of UCMJ, Article 134 (2 Specifications): Incapacitated for the proper performance of his duties.
	Award: Forfeiture of $250 per month for 1 month, restriction and extra duty for 25 days.  No indication of appeal in the record.

960802:	Retention Warning:  Advised of deficiency (Violation of the UCMJ, Article 86, Absence from appointed place of duty, and 2 specifications of Article 134, Incapacitation for the performance of duties, as evidenced by your commanding officer’s nonjudicial punishment imposed on 2 August 1996), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

961030:	NJP for violation of UCMJ, Article 86:  Unauthorized absence.
	Award: Forfeiture of $200 per month for 1 month, restriction and extra duty for 20 days.  No indication of appeal in the record.

961030:	Retention Warning:  Advised of deficiency (Violation of the UCMJ, Article 86, Absence from appointed place of duty, as evidenced by your commanding officer’s nonjudicial punishment imposed on 30 October 1996 and 2 specifications of Article 134, Incapacitation for the performance of duties, as evidenced by your commanding officer’s nonjudicial punishment imposed on 2 August 1996), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

980307:	NJP for violation of UCMJ, Article 117:  Wrongfully use provoking words; violation of UCMJ, Article 128: Assault on a Petty Officer; violation of UCMJ, Article 134 (2 Specifications):  Wrongfully communicate a threat.
	Award: Forfeiture of $569 per month for 2 months ($569 suspended for 6 months), restriction and extra duty for 45 days, reduction to E-2 (Suspended for 6 months).  No indication of appeal in the record.

981016:	NJP for violation of UCMJ, Article 86:  Unauthorized absence, violation of UCMJ, Article 87: Missing ship’s movement, violation of UCMJ, Article 91:  Used disrespectful language towards a superior Petty Officer, Article 117: Wrongfully use provoking words towards a superior Petty Officer, Article 128: Unlawfully push a superior Petty Officer, Article 134 (3 Specifications) Drunk and disorderly conduct and Wrongfully communicate a threat to a superior Petty Officer.
Award: Forfeiture of $569 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

981029:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ, Article 27(b), elected to waive all rights.

981113:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.   

981116:	COMCARGRU 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 19981116 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).

A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor.  The Applicant’s service was marred by award of four nonjudicial punishment (NJP) proceedings for UCMJ violations of Articles 86 (Unauthorized absence from place of duty), 87 (Missing ship’s movement), 91 (Disrespectful language), 117 (Provoking words), 128 (Assault), and 134 (Drunk/disorderly conduct and Communicating a threat).  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an upgrade to his characterization of service.  Relief denied.

The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy.  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

The following is provided for the edification of the Applicant.  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, and certification of non-involvement with civil authorities.  The Applicant’s evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his discharge.   

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.  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 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