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Docket No. ND04-01182

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

ex-FA, USN
Docket No. ND04-01182

Applicant’s Request

The application for discharge review was received on 20040721.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20041122.  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)/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “In 2000 when I entered the U.S. Navy my goal was to retire from the Navy.  When I joined I had no idea the people would try to hurt me and steal from me and basically do whatever possible to try and break me.  I thought that the Navy would be sort of an family type situation.  Where I came from there’s tons of trouble to get in too but when I joined the Navy I was certain that this was my chance to make a better life.  So all through boot camp and my school after boot camp I never got in trouble one time.  My trouble all begin when I stepped aboard the USS Vincennes where Philippinos ran the ship.  This is where I ran into the kind of prejudice and racism that I didn’t know still existed.  From day one those Phillippinos tried make life a living hell.  My first day they stole my CD’s and my shoes.  My entire chain of command was Phillippino.  I felt I had know one to talk to about things that were going on.  These people constantly road me like I was some kind of car or something.  Even in my paperwork they say how I needed constant supervision so that’s telling you how they road me.  I just got to this boat these people don’t even know me and I already need constant supervision.  So I feel like I was forced out.”

Documentation

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

Copy of DD Form 214
Letter from Applicant, undated
Service Record Documents, annotated by Applicant, 26 Apr 02 (3 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	000929 - 001108	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  001109		Date of Discharge:  020523

Length of Service (years, months, days):

	Active:    01  05  17
	Inactive:  None

Age at Entry:  23			Years Contracted:  4

Education Level:  14			AFQT:  39

Highest Rate:  FN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.00 (1)	Behavior:  1.00 (1)		OTA:  2.00

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, OSR, NER

Days of Unauthorized Absence:  27

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

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

Chronological Listing of Significant Service Events:

010510:	NJP for violation of UCMJ, Article 128:  Simple assault.
	Award:  Private oral admonition.  No indication of appeal in the record.

010510:	Retention Warning:  Advised of deficiency (CO’s NJP held 010510, violation of UCMJ Article 128, simple assault), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

011214:	NJP for violation of UCMJ, Article 86:  Absence without leave.
	Award:  Restriction and extra duty for 21 days.  No indication of appeal in the record.

020328:	Applicant to unauthorized absence.

020410:	Applicant missed movement of USS VINCENNES (CG 49) this date.

020423:	Applicant surrendered from unauthorized absence this date.

020424:	NJP for violation of UCMJ, Article 86 (2 specs):  Unauthorized absence, violation of UCMJ, Article 87:  Missing ship’s movement.
Award: Forfeiture of $644.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

020424:	Commanding Officer directed the Applicant's discharge with a general (under honorable conditions) by reason of misconduct due to a pattern of misconduct.

020426:	Commanding Officer recommended discharge with a general (under honorable conditions) by reason of misconduct due to a pattern of misconduct.

020427:	Applicant notified of intended recommendation for discharge with a least favorable characterization of general (under honorable conditions) by reason of misconduct due to a pattern of misconduct.

020427:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation 

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020523 under other than honorable conditions for misconduct due to a pattern of misconduct (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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).

Issue 1:  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.  Specifically, the Applicant alleged that he was the target of racism at the hands of Filipino shipmates while aboard his command.   The record contains no evidence of any wrongdoing by any of the Applicant’s shipmates, chain of command, commanding officer or anyone else in the discharge processing.  The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary.  The Applicant bears the burden of proof through the presentation of credible and substantial evidence to overcome this presumption.  As such, this Board presumed that Applicant’s discharge was regular in all respects.  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 (under 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 nonjudicial punishment proceedings for violations of Articles 86, 87, and 128 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 NDRB did note a technical impropriety in the Applicant’s separation processing.  The record indicates that separation was directed by the Commanding Officer prior to the Applicant’s notification of rights.  Nevertheless, the NDRB is convinced that this procedural error was not prejudicial to the Applicant and therefore affords him no relief.  There is little doubt to the NDRB that the discharge would have remained the same if the error had not been made and thus relief based upon this error is not warranted.  

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.  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 18, effective
12 Dec 1997 until 21 Aug 2002, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 “afls14.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.