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

ex-BMSN, USN
Docket No. ND05-00434

Applicant’s Request

The application for discharge review was received on 20050112.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing discharge review before the Board in the Washington, D.C. Metropolitan area.  The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.  

Decision

A documentary review was conducted in Washington, D.C. on 20050428.  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/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “Was told one thing by legal in GTMOBAY, Cuba then changed in NASJAX, TPU, Jax, FL felt was screwed over by NASJAX  TPU JAX Legal Dept. When I was first told of the infraction, NCIS stated it was wrongful use of a government computer and dereliction of duty.  2 days later, I was told by GTMO Bay Legal that I was being charged with misconduct.  Upon arrival in NAS JAX TPU JAX the Legal Dept told me it was no use to fight it because I’d “be going up against 3 people with 20 + years of service against my 2 yrs of service.”  I feel this was inappropriate advice as I feel the charge and discharge were not warranted.  I lost 21 days leave and was not paid for those days.  I wish to get represented by Vets. AFF.”

REMARKS:  “I wish to have my discharge changed to BM3 W_ L. K_ JR not BMSN K_.  I was sent up to see the C.O. of GTMO BAY, Cuba for being falsely accused of the wrong crime.  I was treated wrongfully by the Legal Dept. at Naval AIRSTAJAX, TPU JAX.

Documentation

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

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	011121 - 020708	COG
	Active:   USN 			None

Period of Service Under Review:

Date of Enlistment:  020709		Date of Discharge:  040728

Length of Service (years, months, days):

	Active:    02  00  19
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  37

Highest Rate:  BM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA*		Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR

Days of Unauthorized Absence:  None

*No Marks made available for review.

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

050518:	Applicant, along with entire Port Operations department verbally counseled in regards to viewing illegal web sites on a Government computer.

040624:	NJP for violation of UCMJ, Article 92:  On or about 040617, fail to obey a lawful general regulation, to wit: Department of Defense Regulation 5500.7-R (Joint Ethnic Regulation) dated August 1993, by using a government owned computer to view pornographic image and to engage in conversation of a sexual nature.
	Award:  Forfeiture of $1/2 month’s pay per month for 2 months, reduction to E-3.  No indication of appeal in the record.

040713:	Applicant notified of intended recommendation for discharge by reason of misconduct due to the commission of a serious offense.  Applicant notified that if separation is approved, the least favorable characterization of service possible is under other than honorable conditions.

040713:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to submit statements to the Administrative Board or the Separation Authority in lieu of a board and the right to obtain copies of the documents used to support the basis for the separation.

040713:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. 

040715:	CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040728 under other than honorable conditions for misconduct due to commission of a serious offense (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

Issue 1.  Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question.  No such impropriety or inequity is evident during the Applicant’s enlistment.  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 an orders violation in that he unlawfully used his government computer to view pornographic materials and engage in sexually explicit conversations over the Internet.  Furthermore, the Applicant’s conduct occurred after he had been verbally counseled about viewing illegal websites a month earlier.  The Applicant’s misconduct resulted in nonjudicial punishment proceedings for a violation of UCMJ Article 92, failure to obey order or regulation.  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.  Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant contends that he received inappropriate advice from the legal department of Naval Air Station, Jacksonville, Florida.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was advised inappropriately by the legal department of Naval Air Station, Jacksonville, Florida.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  Relief denied.  

For the edification of the Applicant, the NDRB does not have the authority to reinstate a sailor’s lost rank as requested.  Only the Board for Correction of Naval Records can grant this type of change.  The Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning relief in this matter.

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), re-issued October 2002, 
effective 22 Aug 02 until Present, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B.  In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 92, for failure to obey order or regulation, if adjudged at a Special or General Court Martial.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

E.  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