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

FOR OFFICIAL USE ONLY

ex-FR, USN
Docket No. ND06-00587

Applicant’s Request

The application for discharge review was received on 20060224.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions).  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 20070110.  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 by reason of misconduct due to commission of a serious offense.

The NDRB did note administrative error(s) on the original DD Form 214.  Block 12a, Date Entered AD This Period, should read:  “03  AUG  04,” and Block 12c, Net Active Service This Period, should read:  “00  09  06,” and Block 24, Character of Service, should read:  “UNDER OTHER THAN HONORABLE CONDITIONS.”  The Commander, Navy Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I didn’t not recive any help for my mental status, And inquire about rejoining service, Marines, or Army”

Documentation

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

Applicant’s DD Form 214 (Service 2) (2)
Letter to Honorable J_ M. T_, United States Senate from T. E. D_, Head, Congressional Affairs, Navy Personnel Command, dtd November 30, 2005
Seven pages from Applicant’s service record
Letter to Rear Admiral B_ C_, Chief, Office of Legislative Affairs from J_ M. T_, United States Senator, dtd October 18, 2005
Applicant’s Privacy Act Authorization Form, dtd September 7, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20030521 - 20030804	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20030805		Date of Discharge:  20040511

Length of Service (years, months, days):

	Active:    00  09  06
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  53 days (In Hands of Civilian Authorities) 

Age at Entry:  19

Years Contracted:  4

Education Level:  12				AFQT:  34

Highest Rate:  FR

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):  National Defense Service Medal

* Not Applicable

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: 

030512:	Applicant marks “no” on induction physical Report of Medical History, DD Form 2807-1, Blocks 17f, “Have you ever had or do you now have: depression or excessive worry” and 17g, “Have you ever had or do you now have:  been evaluated or treated for a mental condition?”

031104:	Applicant marks “no” on sea duty physical Report of Medical History, DD Form 2807-1, Blocks 17f, “Have you ever had or do you now have: depression or excessive worry” and 17g, “Have you ever had or do you now have:  been evaluated or treated for a mental condition?”

040319:	Applicant in hands of civilian authorities.  Arrested by Virginia civil authorities and charged in Virginia Beach General District Court with threat-bomb/damage building (Felony, Class 5), robbery (Felony, Class other) and attempted extortion (Felony, Class 5).

040415:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct - commission of a serious offense.

040415:	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.

040427:	Commanding Officer, USS RONALD REAGAN (CVN 76), recommended to Commander, Naval Air Forces, U.S. Atlantic Fleet, Norfolk, VA, that the Applicant be discharged under other than honorable conditions by reason of misconduct - commission of a serious offense.  Commanding Officer’s comments:  “Fireman Recruit B_ (Applicant) was arrested and charged with communicating a threat - bomb/damage building, robbery, and attempted extortion on 040319.  He is currently in jail in Virginia Beach, Virginia.  This conduct is wholly inconsistent with continued Naval service.  After careful consideration of enclosures (1) through (5), I recommend discharge in absentia under Other Than Honorable conditions.”

040504:	Commander, Naval Air Forces, U.S. Atlantic Fleet, Norfolk, VA, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged, in absentia, on 20040511 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 records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  

Commission of a serious offense does not require adjudication by nonjudicial, judicial proceedings or civilian conviction; however, the offense must be substantiated by a preponderance of evidence.  The Applicant does not deny or contest the factual basis for discharge in his petition to the NDRB.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his action.  The Applicant was provided the opportunity to present his case before an administrative board, but waived that right; thus accepting the discharge recommended in the letter of notification.  Relief is not warranted.

The Applicant contends that he did not receive any help for an unspecified and undocumented “mental status.”   The Board found no indication in the evidence of record or in the documentation submitted by the Applicant that the Applicant suffered from a mental health problem, or was ever improperly diagnosed, misdiagnosed, or failed to be provided with appropriate medical treatment in any regard.  Relief denied.

The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces; therefore, 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 any post-service documentation to consider mitigating the misconduct that resulted in the characterization of discharge.  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 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 122, Robbery; 127, Extortion; and 134, Threat or hoax: bomb.

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.

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