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

FOR OFFICIAL USE ONLY

  ex-AOAN, USN
Docket No. ND05-00906

Applicant’s Request

The application for discharge review was received on 20050427.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051006.  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 and reason for discharge shall not change.  The discharge shall remain General (Under Honorable Conditions) by reason of misconduct due to commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application: 

“I served my country well.  I ask only the chance to take my education higher, so that I can go to college.  I did apply for the G. I. Bill during my enlistment.  I’d love the opportunity to serve my country again, I cannot because of my re code.  Additional information is in this folder.

Thank You!

[signed] B_ K. O_ II (Applicant)”

Documentation

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

Applicant’s Enlistment/Reenlistment Document
Applicant’s DD Form 214 (Member 4)
MEMORANDUM from K_ A. S_, Head, Records Support Branch, Military Personnel Records Division, dtd January 26, 2005
DD Form 215, dtd January 26, 2005
Ltr from Commanding Officer, Patrol Squadron FIVE, dtd November 09, 2004
Ltr from Commanding Officer, Patrol Squadron FIVE, dtd November 18, 2003
SEP/DISCH/FLT RES Interview Data Form, undated
Good Conduct Award, dtd October 16, 2003
Adverse Performance Evaluation Report, dtd August 19, 2004  (2 pages)
Evaluation Report & Counseling Record, period of report, June 16, 2004 – August 19, 2004
Evaluation Report & Counseling Record, period of report, September 10, 2003 – June 15, 2004
Evaluation Report & Counseling Record, period of report, April 02, 2003 – September 09, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20001010 – 20001016		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20001017		Date of Discharge:  20041115

Length of Service (years, months, days):

	Active:    04  00  29 (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:	14 days [extracted from DD-214 and CO’s letter]
	Confinement:			None

Age at Entry:  29

Years Contracted:  4 (9 month extension)

Education Level:  12				AFQT:  30

Highest Rate:  AO3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.66 (3) 		Behavior:  2.66 (3) 			OTA:  3.10 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal, Navy and Marine Corps Service Deployment Ribbon, Navy Good Conduct Medal (1) FPE 19NOV03

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

GENERAL (UNDER HONORABLE CONDITIONS/MISCONDUCT, authority:  MILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events: 

001010:	Waiver granted by CDR R_, for non-minor misdemeanors chart “C.”

030206:	Retention Warning:  Advised of deficiency (Failure to pay debts), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

030528:	Retention Warning:  Advised of deficiency (Disobeying a lawful order, disrespect toward a superior and not responding to corrective measures), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
	Applicant refused to sign the page 13 and desires to make a statement [signed by witness V_ A. M_ SK1(SW)].

040630:	Applicant arrested by Ecuadorian authorities in Manta, Ecuador under suspicion of assault.  [Extracted from CO’s letter.]

040308:	Civil Conviction: Duval County Court, Jacksonville, FL for violation of Simple battery (misdemeanor) on 031120.
Sentence:  4 months probation, $620 court fees and time served.

040820:	NJP for violation of UCMJ, Article 128: Assault
Award:  Forfeiture of $792.75 pay per month for 2 months (suspended for 6 months), 30 days of Correctional Custody Unit, reduction to E-3.  No indication of appeal in the record.

040820:	Retention Warning:  Advised of deficiency (Violation of the UCMJ Article 128, assault), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

040915:	Forfeiture of pay awarded at NJP on 040820 vacated due to continued misconduct.

040920:	NAVPERS 1070/613 issued this date.  [Extracted from CO’s letter.]

041109:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct due to commission of a serious offense.

041109:	Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

041109:	Charges preferred against Applicant on 041019, withdrawn this date.

041109	Commanding Officer, Patrol Squadron FIVE, recommended to Commanding Officer, Transient Personnel Unit, Jacksonville, FL, that the Applicant be discharged with a general (under honorable conditions).  Commanding Officer’s comments:  “AOAN O_’s (Applicant) deliberate violation of lawful orders, insubordinate conduct and his violent tendencies comprise a long pattern or contempt for Navy standards of conduct and reveals a character flaw not conducive to military service.  His violent tendencies have twice led to an assault charge by civilian authorities.  The most recent of these assaults occurred while representing my command on detachment in a foreign nation.  Following the ensuing NJP, AOAN O_ (Applicant) violated a lawful order and then showed disrespect to a superior when questioned.  Following the investigation into these new accusations, I intended to take AOAN O_ (Applicant) to another NJP, and if found guilty, separate him for his pattern of misconduct.  However, he refused this NJP, thus I opted to proceed with the separation for his serious offense (each alone warranting a punitive discharge under the UCMJ) in the interest of expediency.  As we were attempting to process him, AOAN O_ (Applicant) stole his original.  Administrative Separation Processing Notice from the legal officer and proceeded to run from him and the Command Master Chief, ignoring several orders to stop.  Following a period of unauthorized absence, AOAN O_ (Applicant) returned to the command.  Again, we attempted to process him for a general discharge during which he resisted, needing several times to be placed in restraints by base security and culminating in his threatening the legal officer and being placed in pretrial confinement.  At this point, the best course of action regarding AOAN O_ (Applicant) is separation from the Navy and time served.  His behavior throughout the entire process and his lack of regard for authority give me no choice but to forward this separation recommendation without pressing further charges in order to expedite his departure from the command.  AOAN O_ (Applicant) possesses neither the self-discipline nor the integrity to succeed in the Navy and his willful decision to circumvent good order and discipline undermines my ability to execute the command mission.  Both his chain of command and myself have dedicated a long period of intrusive leadership to which AOAN O_ (Applicant) manifestly did not respond.  We have exhausted our resources and it is time for AOAN O_ (Applicant) to move on.  Accordingly, I most emphatically recommend that AOAN O_ (Applicant) be separated from the Navy in accordance with MILPERSMAN section 1910-142.  I have weighed his contributions as an ordnanceman against his disrespect of authority and I strongly recommend a General discharge, Under Honorable Conditions.”

041115:	DD 214:  Applicant discharged with a general (under honorable conditions) by reason of misconduct due to a commission of a serious offense.

The Service Record contained a partial Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20041115 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of general (under honorable conditions).  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 Board presumed regularity in the conduct of governmental affairs (E).

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.  When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  A general discharge is warranted for behavior not sufficiently meritorious to warrant an honorable discharge.  The Applicant’s service was marred by repeated assaults, disrespect, and unauthorized absence.  This misconduct resulted in three retention warnings, nonjudicial punishment proceedings for a violation of UCMJ Article 128, a civilian conviction in the state of Florida for assault, and an arrest by Ecuadorian authorities on suspicion of assault.  Under applicable regulations, a violation of UCMJ Article 128, assault, is considered a serious offense.  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.

There is no requirement or law that grants recharacterization solely on the issue of obtaining educational benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

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), re-issued October 2002, effective 22 Aug 02 until 25 April 2005, Article 1910-142 [formerly 3630605], SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 128, assault.

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.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.

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