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

  ex-MSSA, USN
Docket No. ND05-00118 

Applicant’s Request

The application for discharge review was received on 20041029.  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 20050316.  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.  “Would like to clear up my name.  I was young and immature and made mistakes I have learned from.  Considering Re-enlisting to fight the war on terror.”

Documentation

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

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	920630 - 930620	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  930621		Date of Discharge:  960514

Length of Service (years, months, days):

	Active:    02  10  24
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  11			AFQT:  33

Highest Rate:  MS3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.8 (3), 2.00 (1)*	Behavior:  3.9 (3), 1.00 (1)	OTA:  3.9, 1.67

Military Decorations:  None

Unit/Campaign/Service Awards:  AFEM, SSDR(2), NEM, NDSM

Days of Unauthorized Absence:  None

*Performance evaluation averages have been bifurcated to reflect the Applicant’s receipt of evaluation marks from both the older “4.0” evaluation system as well as the current “5.0” evaluation system.

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:

950914:	NJP for violation of UCMJ, Article 117: Using provoking speeches and gestures.
	Award:  Restriction for 23 days, reduction in rate (suspended for 6 months).  No indication of appeal in the record.  [Extracted from CO’s message.]

960127:	NJP for violation of UCMJ, Article 92 (2 Specs): Specification 1: Willful dereliction of duty; Specification 2: Violation of a general regulation.
	Award:  Forfeiture of $500.00 pay per month for 2 months, restriction for 45 days, reduction to E-3 (all punishment suspended for 6 months).  No indication of appeal in the record.  [Extracted from CO’s message.]

960406:	Punishment of reduction in rate to E-3, 45 days restriction and forfeiture of $500.00 pay per month for two months awarded at CO’s NJP held on 960127 vacated due to continued misconduct.
 
960406:	NJP for violation of UCMJ, Article 86: UA from place of duty from 0530-0745, 960403.
	Award:  Forfeiture of $490.00 pay per month for 2 months, restriction for 45 days, reduction to E-2.  No indication of appeal in the record.

960406:	Applicant notified of intended recommendation by reason of misconduct due to the commission of a serious offense and misconduct due to a pattern of misconduct as evidenced by three ore more punishments under the UCMJ within the current enlistment.  Applicant notified that if discharge is approved, the least favorable characterization of service authorized is under other than honorable conditions.  [Extracted from CO’s message.]

960406:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights.  [Extracted from CO’s message.]

960407:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to a pattern of misconduct as evidenced by three or more punishments under the UCMJ within the current enlistment.

960416:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

Complete discharge package unavailable
PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19960514 under other than honorable conditions for misconduct due to commission of a serious offense (A and B).  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 (C and D).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (E).

Issue 1:  Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question.  No such impropriety or inequity is evident during the Applicant’s enlistment.  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.  Although the discharge package is not complete, there is credible evidence to indicate that the Applicant’s service was marred by unauthorized absence, willful dereliction of duty, failure to obey orders, and provoking speech and gestures.  This misconduct resulted in three separate nonjudicial punishment proceedings for violations of UCMJ Articles 86, 92, and 117.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to rebut his own misconduct.  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.  Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service.  Relief is not warranted.

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.  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 9, effective 
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 92, failure to obey order or regulation, if adjudged at a Special or General Court-Martial.

C.  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.

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

E.  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