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

FOR OFFICIAL USE ONLY

ex-AR, USN
Docket No. ND06-00812

Applicant’s Request

The application for discharge review was received on 20060524.  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 designated American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20070322.  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 a pattern of misconduct.

PART I - ISSUES AND DOCUMENTATION

Applicant’s Issues

The Applicant requests an upgrade based on post service equity.

Documentation

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

Applicant’s DD Form 214 (Member 4)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20020306 - 20020415	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20020416		Date of Discharge:  20050624

Length of Service (years, months, days):

	Active:    03  02  09  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  18 

Years Contracted:  4 (12-month extension)

Education Level:  12				AFQT:  54

Highest Rate:  AWAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.0 (4) 		Behavior:  1.0 (4)			OTA:  1.83 

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

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

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

Chronological Listing of Significant Service Events: 

031222:	NJP for violation of UCMJ, Article 86: On or about 0645, 031110 without authority, failed to go at the time prescribed to his appointed place.
Violation of UCMJ, Article 91: Having received a lawful order from AWC M_ S. O_ to attend SERE school starting on 0645, 10 November.
Violation of UCMJ, Article 107: On or about 031112, with intent to deceive, sign a written statement.
	Award:  Reduction to E-2, forfeiture of ½ pay per month for 2 months, 45 days extra duty during which he will write a paper on Honor, Courage, and Commitment.  No indication of appeal in the record.

040825:	NJP for violation of UCMJ, Article 86: unauthorized absence.
Award:  Reduction in rate to E-1 (suspended for 6 months), 29 days correctional custody.  No indication of appeal in the record.

Undated:	Retention Warning:  Advised of deficiency (Unauthorized absence as convicted at DRB on 040825.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

041021:	NJP for violation of UCMJ, Article 86: On or about 041006 and 041008 failed to go at the time prescribed to his appointed place of duty. 
Award:  Reduction in rate to E-1 (from 040825 NJP) vacated, restriction and extra duty for 45 days, forfeiture of $200.00 pay per month for 2 months, AW Rate revoked, transferred to the line shack, pay back pro-rated AW Bonus.  No indication of appeal in the record.

041021:	Retention Warning:  Advised of deficiency (Unauthorized absence as convicted at NJP on 041021.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

050624:	DD Form 214: Applicant discharged with a General (Under Honorable Conditions) by reason of misconduct pattern of misconduct, authority MILPERSMAN 1910-140.

Service Record did not contain the Administrative Discharge package. 

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050624 by reason of misconduct due to a pattern of misconduct (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).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a discharge package (E).  

The Applicant is requesting and upgrade from general to honorable.  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 retention warnings, 3 nonjudicial punishment proceedings for violations of Articles 86 (Unauthorized absence) and 91 (Willfully disobeying a lawful order) and 107 (False official statement) of the UCMJ.  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 is requesting an upgrade based on post service equity.  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 to consider mitigating the misconduct that resulted in the characterization of discharge.  Relief denied.

The Applicant is requesting a RE-Code change to enlist in the U.S. Army.  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 11, effective 
26 April 2005 until Present, Article 1910-140, 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, Articles 91 (Willfully disobeying an order) and 107 (False official statements).

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 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