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

FOR OFFICIAL USE ONLY

  ex-AOAA, USN
Docket No. ND05-01062

Applicant’s Request

The application for discharge review was received on 20050606.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to uncharacterized.  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 20051117.  After a thorough review of the available 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 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: 

“Respectfully request change in discharge for the purpose of reenlisting and applying for the honorable navy seals.”

Documentation

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

Only the service record was reviewed.  The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19990930 – 20000814		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20000815		Date of Discharge:  20020215

Length of Service (years, months, days):

	Active:    01  06  01  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  none
	Confinement:		  none

Age at Entry:  18 

Years Contracted:  4 (12 month extension)

Education Level:  12				AFQT:  43

Highest Rate:  AOAA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NA*		Behavior:  	NA*		OTA:  NA*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  None 

* Not Available

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

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

Chronological Listing of Significant Service Events: 

011105:	Applicant UA and in the hand civil authorities.

020114:	Applicant pleaded guilty to, and was found guilty of, two counts of abduction and robbery on 011104 at Circuit Court of City of Virginia Beach.  (Date of final judgment entered 020117).  

020114:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

020114:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

020130:	Commanding Officer, Airborne Mine Countermeasures Weapon Systems Training School, recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.  Commanding Officer’s comments:  “AOAR W_ (Applicant) is unfit to remain on active duty as documented by enclosure (1) through (4) [Administrative Separation Processing Notice-Administrative Board Procedure of 14 January 2002, Court Finding-Virginia:  In the Circuit Court of the City of Virginia Beach Case No.:CR01-4711, U.S. Naval Criminal Investigative Service Report of Investigation of 08 November 2001, NAVPERS 1070/606 Record of Unauthorized Absence of 05 November 2001].  His behavior has demonstrated a significant departure from that expected of a military servicemember.  I have determined that he has no potential for future productive naval service. Accordingly, I am recommending separating AOAR G_ E. W_ (Applicant) with an Other Than Honorable Discharge.”

020208:	COMNAVAIRLAN Norfolk, VA, directed the Applicant's discharge under other than honorable conditions by reason of misconduct commission of a serious offense. 

Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020215 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of under other than 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).

Certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  On 20020114, in civil court, the Applicant pleaded guilty to, and was convicted of, two counts of abduction and one count of robbery.  The Applicant’s actions are serious offenses and violations of Articles 122 and 134 of the UCMJ.  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.  The Board found the Applicant’s under other than honorable conditions discharge warranted.  Relief is not warranted.

The Applicant requests a characterization change so that he can reenlist and become a Navy SEAL.  The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment, educational opportunities or reenlistment.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety or inequity after a review of Applicant’s case.  However, 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.  Relief on the basis of this issue is unwarranted.

By regulation, members notified of intended recommendation for discharge within the first 180 days of enlistment are eligible for an uncharacterized or entry-level separation characterization of service unless there were unusual circumstances regarding a servicemember’s performance or conduct that merit another characterization.  The Applicant was notified of his Commanding Officer’s intention to separate him after serving 17 months.  The Applicant was not eligible for an uncharacterized character of service.  Furthermore, the Applicant’s misconduct would have made an uncharacterized character of service inappropriate.  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.  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 31, dated 20 Feb 01, effective 25 Jan 01 until 21 Aug 02, 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 122, robbery or Article 134, kidnapping.

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