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

FOR OFFICIAL USE ONLY

  ex-AD3, USN
Docket No. ND05-01529

Applicant’s Request

The application for discharge review was received on 20050912.  The Applicant requests Narrative Reason for Separation be changed.  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 20060621.  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 reason for discharge shall not change.  The discharge shall remain Honorable by reason of misconduct due to a pattern of misconduct.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I wish to continue my military career.  My record shows loyalty, good conduct and a clean record for 91/2 years.  The arranged charges against me do not change the strong patriotism and loyalty I feel for my country.  The military is the only career I wish to pursue.  I have done nothing to merit a pattern of misconduct and wish to serve our Great Country for at least 20 more years.”

Documentation

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

Applicant’s DD Form 214  (Member 4)
Applicant’s DD Form 214  (Member 1)
Extracted from Service Record (98 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19940615 - 19950604	COG
	Active:    USN	19950605 – 19990521	HON
	Active:    USN	19990522 – 20030106	HON

Period of Service Under Review:

Date of Enlistment:  20030107		Date of Discharge:  20041227

Length of Service (years, months, days):

	Active:    01 11 20
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  18 

Years Contracted:  4 

Education Level:  12				AFQT:  42

Highest Rate:  AD2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.4 (5)		Behavior:  2.8 (5)		OTA:  3.3

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Meritorious Unit Commendation, Navy Battle “E” Ribbon (2), Navy Good conduct Medal (Period Ending 04 June 05 (3), National Defense Service Medal (2), Armed Forces Expeditionary Medal (2), Navy Sea Service Deployment Ribbon (4), Global War on Terrorism Expeditionary Medal.

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

HONORABLE/PATTERN OF MISCONDUCT, authority:  MILPERSMAN, Article 1910-140 (formerly 3630600).

Chronological Listing of Significant Service Events: 

030107:	Reenlisted this date for a term of 4 years.

040920:	NJP for violation of UCMJ, Article 92:
	Specification 1:  In that Aviation Machinist’s Mate Second Class P_ E. W_ (Applicant), SSN, U.S. Navy, on active duty, did, on or about 30 August, 2004, Violate a lawful order, to wit:  Results of Disciplinary Review Board dated 20 August 2004, by not maintaining proper uniform regulations.
	Specification 2:  In that Aviation Machinist’s Mate Second Class P_ E. W_ (Applicant), SSN, U.S. Navy, on active duty, did, on or about 28, June, 2004, Violate a Naval Regulation, to wit:  Chapter 2 of the U. S. Navy Uniform Regulations, by reporting for duty unshaven with uniform in disarray and dirty.
Violation of UCMJ, Article 107:
Specification:  In that Aviation Machinist’s Mate Second Class P_ E. W_ (Applicant), SSN, U.S. Navy, on active duty, did, on or about 30 August, 2004, with intent to deceive, make to Aviation Machinist’s Mate First Class E_ O. P_, an official statement, to wit:  that he had shaved the previous evening, which was totally false, and then known by said P_ E. W_ (Applicant) to be so false.
	Award:  Forfeiture of $1125.00 pay per month for 1 months, reduction to E-4 (suspended for 6 months).  No indication of appeal in the record.

041116:	NJP for violation of UCMJ, Article 92:
	Specification:  In that Aviation Machinist’s Mate Second Class P_ E. W_, SSN, U.S. Navy, on active duty, did, on or about 31 October, 2004 Violate a lawful order, to wit: result of Commanding Officer’s Non-judicial Punishment on 21 September, 2004, to complete AD OJT by 10 October, 2004.
	Violation of UCMJ, Article 107:
Specification:  In that Aviation Machinist’s Mate Second Class P_ E. W_ (Applicant), SSN, U.S. Navy, on active duty, did, on or about 31 October, 2004, with intent to deceive, make an official statement, to wit: a journal entry that he had shaved that morning, which was totally false, and then known by said P_ E. W_ (Applicant) to be false.
	Award:  Forfeiture of $907.00 pay per month for 1 month, reduction to E-4.  No indication of appeal in the record.

041119:	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 pattern of misconduct.

041119:	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.

041127:	Commanding Officer, Electronic Attack Squadron ONE THREE TWO recommended to Commander Navy Personnel Command that the Applicant will be discharged with a honorable by reason of misconduct due to pattern of misconduct.  Commanding Officer’s comments:  “AD3 P_ E. W_ (Applicant), is being separated for Reason of Misconduct – Pattern of Misconduct.  Since reporting, AD3 W_ (Applicant)’s work performance has been below average and in steady decline.  Over the past six months AD3 W_ has had no interest in personal rehabilitation or career recovery.  After first imposing Non-written and verbal effort by his chain of command to improve his performance and become a productive Sailor in the United States Navy.  AD 3 W_ (Applicant)’s repeated failure to follow orders in regard to job performance, and his continued false official statements involving his substandard personal grooming, is inconsistent with military service and he should be subsequently characterization of service of Honorable based on his length of service and my overall assessment that his unsatisfactory performance has not defined his entire tenure.”

041227:	DD Form 214: Applicant discharged Applicant with a character of service of honorable and narrative reason of pattern of misconduct.

*Service Record contains a partial Administrative Discharge package. 
PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20041227 by reason of misconduct due to a pattern of misconduct (A and B) with a service characterization of honorable.  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 NDRB advises the applicant that his service record has a partial administrative discharge package. In the Applicant’s case, the Board presumed regularity in the conduct of governmental affairs and that the Applicant’s discharge was regular in all respects.

The Applicant contends that he has “done nothing to merit a pattern of misconduct”. He further contends that his” record shows loyalty, good conduct and a clean record for 91/2 years”.  The Board advises the Applicant that despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. Additionally, members may be separated when during the current enlistment they have two or more non-judicial punishments, court-martial, or civil convictions, or combination thereof.  In the Applicant’s case, the evidence of record shows that the Applicant’s service was marred by, two nonjudicial punishment proceedings for violations of UCMJ Articles 92 (2 specs: Failure to obey a lawful order) and 107 (2 specs: False official statement).  Violations of Article 92 and 107 are considered serious offenses and typically warrant a punitive discharge if adjudged at a special or general court-martial. 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 and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant states he wishes to continue his military career. 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.  Reenlistment policy of the naval service is promulgated by the Commander, Navy Recruiting Command, 5722 Integrity Drive, Bldg 784, Millington, TN 38054 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.  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 after a review of Applicant’s case.  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 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.  As of this time, the Applicant has not provided sufficient post-service documentation for the Board to consider.  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.  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 2002 until 25 April 2005, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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 a lawful order) and 107 (false official statement).

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