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

FOR OFFICIAL USE ONLY

ex-SR, USNR
Docket No. ND06-00622

Applicant’s Request

The application for discharge review was received on 20060404.  The Applicant requests that 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 20070125.  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 General (Under 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 24, Character of Service, should read:  “GENERAL (UNDER HONORABLE CONDITIONS)” and Block 26, Separation Code, should read: “JKQ.”   The Commander, Navy Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

Equity- Post service

Documentation

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

Applicant’s DD Form 214 (Member 1)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USAF (DEP)	20030811 - 20030822	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20040206		Date of Discharge:  20040920

Length of Service (years, months, days):

	Active:    00 05 21  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence: None
	Confinement:		  None

Age at Entry:  20

Years Contracted:  4 (12-month extension)

Education Level:  GED				AFQT:  82

Highest Rate:  SKSR

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):

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

Chronological Listing of Significant Service Events: 

040206:	An enlistment waiver interview conducted between the Commanding Officer and Applicant for 1 Chart C (Petit Theft).  Enlistment waiver approved.

040330:	Applicant’s Active Duty Service date.

040722:	NJP for violation of UCMJ, Article 86:  Unauthorized absence without leave.  Violation of UCMJ, Article 92 (2 specs):  Failure to obey a written order.
	Award:  Correctional Custody for 30 days.  No indication of appeal in the record.

040805:	NJP for violation of UCMJ, Article 121:  Wrongful appropriation.
Violation of UCMJ, Article 92:  Failure to obey a written order.
	Award:  Forfeiture of $596.00 per month for 2 months, restriction and extra duty for 30 days.  No indication of appeal in the record.

040806:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct commission of a serious offense.

040809:	Applicant advised of rights and having consulted with counsel, elected to waive all rights except to submit a written statement for consideration by separation authority.

040831:	Commanding Officer, recommended discharge with a general (under honorable conditions) by reason of misconduct due to a commission of a serious offense as evidenced by all incidents in current enlistment.  Commanding Officer’s comments:  “Seaman Recruit R_ (Applicant) reported to this command 040601.  He appeared at Captain’s Mast on two separate occasions, where he pled guilty and was found guilty of all charges and specifications.  The second offense occurred while SR R_ was an awarded at Correctional Custody Unit (CCU), Pensacola, Florida.  The CCU time was awarded at mast held on 040722.  While at CCU, SR R_ stole the lighter of a staff member used it to smoke a cigarette at an unauthorized time and place.  This offense resulted in OIC, CCU terminating SR R_’s awardee status and returning him to this command for disposition.  His total disregard for rules and regulations and his failure at CCU, clearly indicates that he has no potential for continued Naval Service.  Based on the foregoing and in accordance with reference (a) recommend that Seaman Recruit R_ be separated from Naval Service with a General Discharge.”

040902:	Commander, Navy Region Southeast directed the Applicant's discharge with a general (under honorable conditions) by reason of misconduct due to a commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040920 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 records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  

Equity – Post service:  The Applicant contends that he has become a responsible adult since his discharge.

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.

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 for violations of Articles 86, 92 and 121 of the UCMJ.  Violations of UCMJ Article 92 are considered a serious offenses for which a punitive discharge is authorized if adjudged by 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.

For edification of the Applicant, 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.

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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