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Docket No. ND05-00595

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

 ex-AD2, USN
Docket No. ND05-00595

Applicant’s Request

The application for discharge review was received on 20050214.  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 20050616.  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)/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.  I am appealing the characterization of my discharge.

2.  My discharge was inequitable because it was not substantiated by preponderance of evidence as per MILPERSMAN 1910-142.

3.  SAVI, NCIS and local police were never involved, also no witnesses and evidence was ever reported.

4.  My Division Chief ADCS C_ attempted to damage my character during the investigation by purposely leaving sensitive and false documentation in the work center on magazine rack.  Until one of the books was discovered by me.  Which I turned into the legal office. (Copy included in the package)

5.  I believe this unfair decision which made by Patron Two Six was initiated because of a statement I made saying “This command need to be investigated because there is a lot of fraternization & insubordinate relationships going on”.

6.  Requested Court Martial in lieu of Captains Mast to avoid impartial judgment but my command decided to administratively separate me only.

7.  The only justification the command used to Administratively Discharge me was to accuse me of failing alcohol rehabilitation, which I had no history of attending any alcohol rehabilitation counseling. No documentation in my medical record.

8.  Administratively Discharged against my will therefore SRB recoupment was also unfair.”

Documentation

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

MILPERSMAN 1910-142 (3 pages)
Applicant’s DD Form 214 (2)
Separation travel orders, dated October 7, 2004
Copy of note pad Applicant found on magazine rack (8 pages)
Worksheet for separation (2 pages)
Three pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	980304 - 980311	COG
	Active:   USN 			980312 - 010531	HON

Period of Service Under Review:

Date of Enlistment:  010601		Date of Discharge:  041015

Length of Service (years, months, days):

	Active:    03  04  15
	Inactive:  None

Age at Entry:  26			Years Contracted:  6

Education Level:  13			AFQT:  69

Highest Rate:  AD2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (4)		Behavior:  2.50 (4)		OTA:  3.22

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, NER, SSDR (2), KCM, GCM (2), MUC, AFSM

Days of Unauthorized Absence:  None

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

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

Chronological Listing of Significant Service Events:

021216:	NJP for violation of UCMJ, Article 111:  Drunken or reckless operation of a motor vehicle on 021102.
	Award:  Forfeiture of ½ month’s pay for 2 months, extra duty for 45 days, reduction to E-4.  Reduction suspended for 6 months.  No indication of appeal in the record.

021216:	Retention Warning:  Advised of deficiency (Drunken or reckless operation of a vehicle while on liberty onboard Naval Station Roosevelt Roads, PR on 021102.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
	
040821:	Report and disposition of offense(s):  Charge I:  Violation of UCMJ, Article 134: Willfully and wrongfully expose in an indecent manner to public view his private parts.  Charge II:  Violation of UCMJ, Article 92: Violate a lawful regulation, to wit: SECNAVINST 5300.26C, dated 971017, by wrongfully sexually harassing an active duty sailor in Patrol Squadron 26 on 040417.

040826:	Applicant issued a military protective order concerning allegations of sexual harassment.

040914:	The Applicant refused the imposition of nonjudicial punishment.

041006:	Applicant notified of intended recommendation for discharge by reason of misconduct due to the commission of a serious offense.  The Applicant was notified that the least favorable characterization of service possible is general (under honorable conditions).

041006:	Applicant advised of his rights and having elected 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.  The Applicant had 6 or more years of total active service and was eligible for an administrative board.

041015:	Commanding Officer directed discharge by reason of misconduct due to the commission of a serious offense.  Commanding Officer’s comments (verbatim): I have reviewed all material relating to AD2 M_ (Applicant) Administrative Separation.  AD2 M_ (Applicant should be separated from the United States Navy for commission of a serious offense and alcohol rehabilitation failure.  AD2 M_’s (Applicant’s) actions are prejudicial to the Navy’s Core Values and to good order and discipline.

041015:	DD214:  Applicant discharged with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20041015 with a general (under honorable conditions) characterization 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).

Issues 1 and 2.  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.  The record of evidence indicates the Applicant was suspected of having violated UCMJ Article 92, failure to obey order or regulation by wrongfully sexually harassing an active duty sailor and UCMJ Article 134, indecent exposure.  The Applicant contends his discharge was inequitable because it was not supported by a preponderance of the evidence.    The Applicant’s issues are without merit.  The Applicant is correct in his assertion that a separation by reason of misconduct due to a commission of a serious offense must be supported by a preponderance of the evidence.  There is a presumption of regularity in the conduct of governmental affairs.  Under this presumption, the Board may presume the government’s actions were correct and appropriate even though there is little or no evidence in the documentary record to support the government’s action.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his position.  In the Applicant’s case, although the record contains scant evidence of the Applicant’s misconduct, the presumption of regularity permitted the Board to conclude the Navy’s actions in discharging the Applicant were proper and equitable.  The Applicant has submitted no evidence to establish his innocence of the charges against him.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  As such, the Board unanimously concluded that this issue is without merit.  Relief denied.

Issue 3.  The Applicant further implies his discharge was inequitable because he claims that no law enforcement agencies investigated the allegations.  Under applicable regulations there is no requirement that a separation by reason of misconduct due to commission of a serious offense be supported by a police or NCIS investigation.  All that is required is a preponderance of evidence that supports the Applicant’s misconduct.  The Applicant’s issue is without merit.  Relief denied.

Issues 4 and 5.  The Applicant implies that his division chief conspired to damage his character.  The Applicant further alleges his processing was retaliation for allegations he made about the command.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of establishing his issues 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 his division chief conspired against him.  Likewise, there is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that his processing was retaliatory in nature.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  Relief denied.  

Issue 6.  The Applicant implies that his discharge is inequitable because his command chose to administratively separate vice refer the case to court-martial.  There is no law or regulation that requires a convening authority to refer a servicemembers case to court-martial.  The Applicant exercised his right to refuse the imposition of nonjudicial punishment.  As a result, the convening authority chose to administratively process the Applicant vice refer the case to court-martial.  On it’s face, there is nothing improper or inequitable regarding the convening authority’s decision.  There is no evidence in the record, nor has the Applicant produced any evidence, that suggests the convening authority’s decision was in any way improper or inequitable.  Relief denied.

Issue 7.  The Applicant contends he was separated by reason of convenience of the government – alcohol rehabilitation failure.  A review of the record indicates that in the Commanding Officer’s comments, the Applicant was erroneously recommended for separation based upon convenience of the government – alcohol rehabilitation failure.  Despite this administrative error, the Applicant was properly notified of recommendation for separation by reason of misconduct due to commission of a serious offense.  Furthermore, the Applicant elected and acknowledged his rights based on misconduct due to commission of a serious offense and was ultimately separated by reason of misconduct due to commission of a serious offense.  The Board therefore concluded that the Commanding Officer’s administrative error constituted a technical impropriety in the Applicant’s separation processing and was not prejudicial to the Applicant.  As such, this administrative error affords the Applicant no relief.  There is no doubt to the NDRB that the discharge would have remained the same if the error had not been made.  Relief denied.

Issue 8.  The Applicant contends that the recoupment of his selective reenlistment bonus was unfair.  Unfortunately, this issue does not serve to provide a foundation upon which the Board can grant relief.  The Board has no authority to change a discharge simply because the Applicant believes recoupment of a selective reenlistment bonus was unfair.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

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, failure to obey order or regulation, and Article 134, indecent exposure, 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

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.