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

FOR OFFICIAL USE ONLY

 ex-BMSN, USN
Docket No. ND05-01431

Applicant’s Request

The application for discharge review was received on 20050901.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and the Narrative Reason for Separation be changed to “RE-2/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 20060504.  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 and/or attached document/letter:

“I, A_ J. B_(Applicant), feel I was wrongfully discharged from the United States Navy while on board the USS Seattle AOE-3.  I believe I deserve another chance to enlist and show my ability to succeed as an outstanding sailor in the United States Navy.  As a sailor I accomplished many things while on board the ship, as well as off the ship.  I have enclosed my evals, as well as numerous certificates I received for completing college courses on my off time.  I was also a stretcher-bearer for the medical team while on board the ship.  I also came home during my free weekends and helped with the JROTC program.   I also feel I deserve another a second chance because, BM3 D_ H_, who was the other party involved in my case, is still an active duty member.  BM3 H_ received punishment for the same actions that I was discharged for, but it wasn’t as harsh as getting out.  He was given a second chance to regain his respect and rank as a sailor.  BM3 H_ received restriction, and was fined; basically a pat on the hand.  I on the other hand, was reduced in rank, fined, and discharged on a misconduct discharge.  Although BM3 H_ has served more time in the military, I still feel I was treated unfair and deserve another chance like he was given.   I am not saying that I didn’t make mistakes, but who hasn’t.  I have always been told to learn from your mistakes, but I can’t do that if I am given up on.  And I feel that is what happened, that I was given up on, instead of given another chance.  The characterization that I received basically states that I am not adult enough to follow orders as they have been given to me.  Which also means, that I would not be able to succeed in life.  You have to follow orders every where you go, and I know this, but the military has put a label on me, unless I can get that label changed and go back to do my best.  Everyone deserves a second try at something, and I feel mine is being taken from me.   Enclosing, I was told of an option that I have if at all possible.  I would like to reenlist on a two-year probationary period.  This allows me the time to prove that I am an outstanding sailor and I can follow orders as I say in this letter.  The military has changed me into a stronger, wiser, more mature person, and I would like to steady myself on that path.  I cannot do so until the board gives me the opportunity and second chance to prove myself.  In regards to do that, I would like for the board to rethink their decision, and change my characterization of service so I can reenlist and show my abilities as an outstanding sailor and person as well.  Thank you for your time and patience.  I hope to be hearing from you soon.   
Sincerely,
[signed]
A_ J. B_(Applicant)”

Applicant’s Remarks:  (Taken from the DD Form 293.)

I would like for the board to highly reconsider my change of characterization so I can reenlist.  I have enclosed my statements and other documents to support my request.

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Second page of Evaluation Report and Counseling Record, dtd March 18, 2003
Certificate of completion of Alcohol Misuse and Drug Use Prevention, Interpersonal Responsibilities, Health and Readiness, and Personal Finances, dtd March 8, 2004
Certificate of Completion of Navy College Pace Program Academic Skills in English, dtd July 31, 2004
Certificate of Completion of Navy College Pace Program Academic Skills in Math, dtd August 22, 2004
Military Training Certificate of 4 years of instruction in the Junior Reserve Officers’ Training Corps, dtd March 22, 2002

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20020930 - 20021007	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20021008		Date of Discharge:  20041019

Length of Service (years, months, days):

	Active:    02  00  12
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  18

Years Contracted:  4

Education Level:  12				AFQT:  38

Highest Rate:  BM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.0 (1)			Behavior:  1.0 (1)		OTA:  1.83

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal/Armed Forces Expeditionary Medal/Sea Service Deployment Ribbon

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: 

040729:	NJP for violation of UCMJ, Article 92: Failure to obey a lawful written order given by the executive officer.
	Award:  Restriction and extra duty for 30 days, reduction to E-3.  No indication of appeal in the record.

041002:	NJP.  No further information found in service record.  [Extracted from NAVPERS 1070/604, Awards.]

041019:	DD Form 214:  Applicant discharged with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense.

Service Record did not contain the Administrative Discharge package.  
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 20041019 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).

The Applicant bears the burden of establishing her issues through the presentation of substantial and credible evidence.  There is no evidence in the record, nor has the Applicant produced any evidence, that the discharge was not proper and equitable.  The Board presumed the Applicant was notified of the intended recommendation for discharge by reason of misconduct due to commission of a serious offense, was advised of her rights, provided the opportunity to consult with counsel, and elected or waived each right. Commission of a serious offense was documented by the Applicant’s conviction at nonjudicial punishment of Article 92 of the UCMJ. The Board presumed that the Commanding Officer, USS Seattle, recommended discharge with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense. Relief denied.

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 when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.  The Applicant’s service was marred by 2 nonjudicial punishment proceedings, one of these was for violation of Article 92 of the UCMJ, a serious offense. The Applicant claims inequity in the characterization of her discharge. There is no evidence in the record, nor has the Applicant produced any evidence, to support her claim of inequity.  The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her contract with the U.S. Navy and falls far short of that required for an upgrade of her 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.  The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this 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 92 – failure to obey order, regulation.

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