Author: CAP
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Docket No. ND05-00658

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

FOR OFFICIAL USE ONLY

 ex-SR, USN
Docket No. ND05-00658

Applicant’s Request

The application for discharge review was received on 20050302.  The Applicant requests the characterization of service received at the time of discharge be changed to general (under honorable conditions) and the reason for the discharge be changed to “Failure to Adapt.”  Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050811.  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 and the reason for 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:

“I served faithfully and loyally to the military for 2 yrs.  I gave it my all but in all honesty, the military was not for me.  I had good times and bad times but I couldn’t see myself dealing with nonsense for something I didn’t even want.  I worked hard, obeyed orders, and contributed in my duty station’s and departments events.  I did extra curriculum activities to help ease the sadness and depression of the decision I made to join.  Nothing worked and I requested a discharge early on.  I was told I had to complete my term and I did try For a while longer.  Family issues and command issues made my decision to get out more intense. I apologize for my actions.”

Applicant provided the following Remarks:

“I know we are responsible for our actions and I deeply apologize for my actions.  I wish I could have waited and joined the military under different circumstances other than my parents forcing me to.  I believe if I would have joined on my own pretenses I would have been older, more mature and less rebellious in my heart.  I felt as though my parents were looking for someone or something else to take care of the responsibility of raising me so they shipped me off to the military.  I was hurt, depressed, and felt unwanted. I should have bit the bullet and took it for what it was worth, but I focused on the storm cloud instead of the silver lining.  I hate the decision I made to request this discharge but I pray that I can at least get the discharge I deserve, General.”

Documentation

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

Letter from Applicant, dated April 6, 2005

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	991118 - 000420	ELS-Med Disqual
Inactive: USNR (DEP)	000817 - 000905	COG

Period of Service Under Review:

Date of Enlistment:  000906		Date of Discharge:  030425

Length of Service (years, months, days):

	Active:    02  07  20	(Does not exclude lost time)
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 (12 month extension)

Education Level:  12 (Job Corps)		AFQT:  53

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.00 (2)		Behavior:  1.50 (2)		OTA:  2.34

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  18 [Extracted from DD 214]

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:

020710:	NJP for violation of UCMJ, Article 128:  Assault of duty.
	Award:  Forfeiture of $100.00 pay per month for 1 month (suspended for 6 months), restriction and extra duty for 3 days.  No indication of appeal in the record.

020710:	Retention Warning:  Advised of deficiency (The Applicant appeared before the Commanding Officer on July 10, 2002 for assault), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

020905:	Applicant to unauthorized absence [Extracted from DD 214].

020924:	Applicant from unauthorized absence [Extracted from DD 214].

021002:	NJP for violation of UCMJ, Article 86 (2 specs):  Unauthorized absence from unit; violation of UCMJ, Article 107:  False official statement.
	Award:  Forfeiture of $100.00 pay per month for 2 months, restriction and extra duty for 21 ½ days and reduction to E-2 (suspended for 6 months).  No indication of appeal in the record.

021205:	Reduction in rate to E-2 suspended at CO’s NJP of 021002 vacated this date due to continued misconduct.

021205:	NJP for violation of UCMJ, Article 86:  Unauthorized absence from unit.
	Award:  Forfeiture of $649.00 pay per month for 2 months, restriction and extra duty for 45 days and reduction to E-1.  No appeal in the record.

021209:	NJP for violation of UCMJ, Article 86:  Failure to go to appointed place of duty.
	Award:  3 days confinement on bread and water.
	[Extracted from Commanding Officer letter of 030325].

021227:	NJP for violation of UCMJ, Article 86:  Failure to go at time prescribed. 
	Award:  3 days bread and water (suspended for 6 months).

030107:	Applicant notified of intended recommendation for discharge by reason of misconduct due to pattern of misconduct, as evidenced by the page 13 warning dated 020710 and the subsequent misconduct, and misconduct due to commission of a serious offense, as evidenced by the NJP’s dated 020710 and 021002.  Applicant notified that the least favorable characterization of service possible is under other than honorable conditions.

030107:  	Applicant advised of her rights and having elected not to consult with qualified counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

030113:	Acknowledged availability of in-patient treatment if evaluated  alcohol or drug dependent.  Applicant elected not to accept treatment prior to discharge.

030325:	Commanding Officer, USS DWIGHT D. EISENHOWER (CVN 69), recommended to Commander Naval Air Force, U.S. Atlantic Fleet (COMNAVAIRLANT) that the Applicant be charged under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to pattern of misconduct.  Commanding Officer’s comments (verbatim):  “SR W_ (Applicant)’s conduct is incompatible with the Naval service.  SR W_ (Applicant) has been found guilty to violations of the UCMJ at five nonjudicial punishments during her current enlistment.  Her misconduct includes eight specifications of unauthorized absence, an assault, and a false official statement.  SR W_ (Applicant)’s chain of command has made several attempts to assist and counsel her in an effort to turn her into a productive Sailor, but their efforts have not been met with cooperation by SR W_ (Applicant).  By SR W_ (Applicant)’s behavior, it is apparent that she will continue to violate the rules and regulations of the United States Navy.  I have determined that she has no potential for future Naval service and I recommend that she be administratively separated with an Other Than Honorable discharge.”

030326:	COMNAVAIRLANT 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 20030425 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).

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 unauthorized absences, a false official statement and assault.  This misconduct resulted in five separate nonjudicial punishment proceedings for violations of UCMJ Articles 86, 107, and 128.  Under applicable regulations, a violation of UCMJ Article 107 or Article 128 is considered a serious offense.  The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her 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 her characterization of service.  Relief is not warranted.

The Applicant implies that her misconduct was the result of racism and sexual harassment on the part of her chain of command and the Command Chaplain.  The government enjoys a presumption of regularity in the conduct of its affairs.  This presumption permits the Board to presume that the government’s agents acted in good faith, proceeded within the bounds of the law, and conformed their behavior to appropriate standards during the Applicant’s Naval service and subsequent administrative processing.  The Applicant bears the burden of establishing her issues through the presentation of substantial and credible evidence.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that she was the victim of racism or sexual harassment.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  Relief denied.

The Applicant contends her disciplinary problems were the result of negative feelings caused by family issues with her parents.  The NDRB recognizes that serving in the U.S. Navy is challenging.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  It must be noted that many members of the Navy endure hardships similar to those of the Applicant.  It must further be noted that the vast majority of those members do not commit misconduct as a result of their problems.  Despite their hardships, these sailors are still able to serve honorably and therefore earn their honorable discharges.  In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  The NDRB found that the Applicant's service was equitably characterized.  Relief denied.

The Applicant desires that her Narrative Reason for Separation be changed to “Failure to Adapt.”  The Applicant was multiple processed for separation by reason of misconduct due to the commission of a serious offense and misconduct due to a pattern of misconduct.  The Applicant’s misconduct, warranting separation for misconduct due to a pattern of misconduct and the commission of a serious offense, is clearly documented in the service record.   The separation authority determined that misconduct by reason of commission of a serious offense most clearly described the reason for discharge.  No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged.  To change the Narrative Reason Separation would be inappropriate.  Relief denied.

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 107, false official statement or Article 128, assault, 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.