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

FOR OFFICIAL USE ONLY

ex-SR, USN
Docket No. ND06-00602

Applicant’s Request

The application for discharge review was received on 20060308.  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 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.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I would request and upgrade in discharge and enlistment code changed.  If possible I would like to enlist in the US. Army and join the 101st airborne division.”

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

“I would like to request and schedule a date and time to fly to Washington D.C. to request an discharge upgrade and convene with the Naval Council of Personnel Boards.”

Documentation

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

Applicant’s statement, undtd
Applicant’s DD Form 214 (Service 2)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19981228 - 19990111	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19990112		Date of Discharge:  20010608

Length of Service (years, months, days):

	Active:    02  04  27
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  24 days

Age at Entry:  19

Years Contracted:  4 (12-month extension)

Education Level:  12				AFQT:  42

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.0 (2)		Behavior:  1.5 (2)		OTA:  1.92

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Sea Service Deployment Ribbon, Navy and Marine Corps Overseas Service Ribbon, Humanitarian Service Medal, Navy “E” Ribbon-2.

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: 

990419:	Applicant disenrolled from HM “A” School.

991209:	NJP for violation of UCMJ, Article 107: Making a false statement.
Violation of UCMJ, Article 128: Assault.
Date of Offenses: 991027.
	Award:  Forfeiture of $537.00 per month for 1 month, restriction and extra duty for 30 days (15 days suspended), reduction to E-2 (suspended for 6 months).  No indication of appeal in the record.

000821:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86 (2 specs): Unauthorized absence.
	Charge II: violation of the UCMJ, Article 91: Disrespect in language to a Chief Petty Officer.
	Charge III: violation of the UCMJ, Article 92 (2 specs): Disobeying a lawful order.
	Charge IV: violation of the UCMJ, Article 117 (2 specs): Provoking speeches or gestures.
	Charge V: violation of the UCMJ, Article 134: Drunk and disorderly.
	Date of Offenses: 000603, 000616, and 000624 and 000806.
	Finding: to Charge and the specification thereunder, guilty.
	Sentence: Forfeiture of $502.00, bread and water for 3 days, confinement for 24 days, reduced to E-1.
	CA action 000000:  Sentence approved and ordered executed except for that portion of the punishment adjudging forfeiture of $000.00 which is suspended for 0 months.
	
000821:	Applicant found fit for confinement.

000909:	Applicant found fit for confinement.

000929:	Medical examination: Applicant here today to discuss alcohol abuse problems.
	A/P: Alcohol dependency.  Tolerance.  (1) Recommend Step II treatment.  (2) Will discuss with DAPA counselor.  (3) Applicant counseled that until therapy he should avoid EOTH or any temptation.

001214:	Competency for duty examination: Applicant refused exam.

001220:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as other than honorable by reason of commission of a serious offense and pattern of misconduct.

001220:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

001222:	Applicant found medically qualified for separation.

010104:	NJP for violation of UCMJ, Article 86: Unauthorized absence.
Violation of UCMJ, Article 92 (3 specs): Disobeying a lawful order.
Violation of UCMJ, Article 134: Drunk and disorderly.
Date of Offense: 001214.
	Award:  Forfeiture of $502.00 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

010419:	Commanding Officer, USS ESSEX (LHD 2), recommended discharge under other than honorable conditions by reason of commission of a serious offense and pattern of misconduct.  Commanding Officer’s comments:  “Based on SR V_(Applicant)’s misconduct, he clearly shows that he has no desire to adhere to basic Navy standards.  He has become an administrative and disciplinary burden to this command.  I do not believe he has rehabilitative potential or that he will become an asset to the Navy in the future.  SR V_ has been in the Navy since 990112.  Since that time he has been to an adverse administrative hearing, numerous DRB boards, two NJPs and one summary court-martial.  We have exhausted all possible avenues to change SR V_’s behavior.  Based on his serious misconduct, I recommend he be immediately separated from the naval service with an other than honorable (OTH) characterization.”

010425:	COMPHIBGRU ONE, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.

010606:	Applicant did not accept treatment available prior to discharge.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010608 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).  

The Applicant introduced no decisional issues for consideration by the Board.  However, 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.  An under other than honorable conditions 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 for violation of Articles 86 (Unauthorized Absence), 92 (Disobeying a lawful order), 107 (False official statements), 128 (Assault) and 134 (Drunk and disorderly) of the UCMJ.  The Applicant was also tried at a summary court-martial for violation of Articles 86 (Unauthorized Absence), 91 (Disrespect in language to a Chief Petty Officer) and 92 (Disobeying a lawful order).  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 “I would request an upgrade in discharge and enlistment code change.” 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), 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, Articles 91 (Disrespect in language to a Chief Petty officer), 92 (Disobeying a lawful order), 107 (False official statements), 128 (Assault) and 134 (Drunk and disorderly) of the UCMJ. 

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