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

FOR OFFICIAL USE ONLY

 ex-ICFR, USN
Docket No. ND05-01097

Applicant’s Request

The application for discharge review was received on 20050617.  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 did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060112.  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 and reason for discharge shall not change.  The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to a pattern of misconduct.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“A) Medical issue not considered

B) Racial or Ethnic factors

C) Pressure to sign separation documents

D) Good conduct during discharge process

E) Exemplary post-service conduct

A) A medical exam, conducted on 21 June 2004, revealed the reason for constant sleepiness to be anemia.  The commanding officer refused to consider the results of this exam as a mitigating factor, and refused to allow the results to be entered into my record.

B) Since my racial / ethnic background and appearance are Native American, and there was a pattern of verbal slurs relating to that, I believe that the circumstances surrounding my discharge are due at least partly to discrimination.

C) It was strongly implied that if I did not waive my right to counsel and to have other’s statements admitted to the administrative board, that the discharge process would be made much more harsh.

D) My conduct during the discharge process was obedient and respectful, still believing that at some point I would receive fair treatment.  I had completed every assignment, and was hoping to be able to continue to fulfill my commitment to the USN
E) My conduct since the discharge has been good.”

Applicant’s Remarks:  (Taken from the DD Form 293.)

I sincerely believe that I have been unfairly treated by the US Navy.  I entered the Navy with promises of career training, money for educational opportunities, and an opportunity to serve my country.  I believe I was unjustly denied those opportunities.  At least in my case, the Navy has failed to live up to it’s own creed.

In trying to pursue other opportunities since my discharge, I have found that an “other than honorable” record is a great hindrance.  I would like to possibly even enlist in another branch of the armed services, but am prevented from doing so by my Navy record.

I respectfully submit this request that my discharge be upgraded, and my that Navy record be ammended.

Documentation

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

Letter from Department of Veterans Affairs, St. Louis, MO to a United States Senator, dtd March 23, 2005
Seven pages from Applicant’s service record
Character Reference ltr from Applicant’s father, S_ W. W_, dtd December 10, 2004
Applicant’s DD Form 214 (2)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20030402 - 20030806	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20030807		Date of Discharge:  20040708

Length of Service (years, months, days):

	Active:    00  11  02
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:	None
	Confinement:			None

Age at Entry:  18

Years Contracted:  4 (24 month extension)

Education Level:  12				AFQT:  66

Highest Rate:  ICFN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NA*				Behavior:  NA*	OTA:  NA*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  None

* Not Available

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

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

Chronological Listing of Significant Service Events: 

040421:	NJP for violation of UCMJ, Article 86: Fail to go.
	Specification: In that Seaman Apprentice S_ A. W_(Applicant), U.S. Navy, Training Support Center, Great Lakes, Illinois, on active duty, did, at Naval Training Center, Great Lakes, Illinois, on or about 15 April 2004, without authority, fail t go at the time prescribe to his appointed place of duty, to wit: 0700 Duty Section Muster.
	Award:  Forfeiture of 1 weeks pay per month for 1 month, restriction and extra duty for 14 days.  No indication of appeal in the record.

040421:	Retention Warning:  Advised of deficiency (Violation UCMJ Article(s) 86, Fail to go.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

040602:	NJP for violation of UCMJ, Article 86:  Fail to go.
	Specification: In that Seaman Apprentice S_ A. W_(Applicant), U.S. Navy, Training Support Center, Great Lakes, Illinois, on active duty, did, at Naval Training Center, Great Lakes, Illinois, on or about 24 May 2004, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: IC “C” School from 1300-1500.
	Award:  Restriction and extra duty for 14 days.  No indication of appeal in the record.

040602:	Retention Warning:  Advised of deficiency (Violation UCMJ Article(s) 86, Fail to go.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

040618:	NJP for violation of UCMJ, Article 86 (6 spes): Fail to go.
	Specification 1: In that Fireman S_ A. W_, U.S. Navy, Training Support Center, Great Lakes, Illinois, on active duty, did, at Naval Training Center, Great Lakes, Illinois, on or about 05 June 2004, without authority, go from his appointed place of duty, to wit: 0630 restriction muster.
Specification 2: In that Fireman S_ A. W_(Applicant), U. S. Navy, Training Support Center, Great Lakes, Illinois, on active duty, did, at Naval Training Center, Great Lakes, Illinois, on or about 08 June 2004, without authority, go from his appointed place of duty, to wit: 1630 restriction muster.
Specification 3: In that Fireman S_ A. W_(Applicant), U. S. Navy, Training Support Center. Great Lakes, Illinois, on active duty, did, Naval Training Center. Great Lakes, Illinois, on or about 08 June 2004, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: IC “C” School.
Specification 4: In that Fireman S_ A. W_(Applicant), U. S. Navy, Training Support Center, Great Lakes, Illinois, on active duty, did, at Naval Training Center, Great Lakes, Illinois, on or about 10 June 2004, without authority, go from his appointed place of duty, to wit: 2150 restriction muster.
Specification 5: In that Fireman S_ A. W_(Applicant), U. S. Navy, Training Support Center, Great Lakes, Illinois, on active duty, did, at Naval Training, Center, Great Lakes, Illinois, on or about 12 June 2004, without authority, go from his appointed place of duty, to wit; 0630 restriction muster.
Specification 6: In that Fireman S_ A. W_(Applicant), U. S. Navy, Training Support Center. Great Lakes, Illinois, on active duty, did, at Naval Training center, Great Lakes, Illinois. on or about 13 June 2004, without authority, go from his appointed place of duty, to wit: 0845 restriction muster.
Violation of the Uniform Code of Military Justice, Article 92: Dereliction of duty.
Specification: In that Fireman S_ A. W_(Applicant), U. S. Navy, Training Support Center, Great Lakes, Illinois, on active duty, having knowledge of his duties, was, on about 08 June 2004, derelict in his duties, by, sleeping on his watch.
	Award:  Forfeiture of $669.00 pay per month for 2 months, restriction and extra duty for 30 days, reduction to E-2.  No indication of appeal in the record.

040618:	Applicant notified of intended recommendation for discharge by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.  Applicant notified that the least favorable characterization of service possible is under other than honorable conditions.

040618:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

040628:	Commanding Officer, Training Support Center, Great Lakes, IL recommended discharge under other than honorable conditions by reason of misconduct - pattern of misconduct and misconduct - commission of a serious offense.  Commanding Officer’s comments:  “FA W_(Applicant) has failed to conform to military standards.  After receiving three nonjudicial punishments, it is evident that he has no potential for further military service.  Additionally, my staff has taken measures to guide this member in the correct direction by counseling him and giving him the tools to correct his deficiencies, and still he failed to comply.  FA W_(Applicant)’s continued misconduct clearly undermines good order and discipline.  Due to his lack of initiative and willful disregard for military authority, I recommend FA W_(Applicant) be separated from the Navy with an Other Than Honorable Discharge.”

040629:	Commander, Navy Region Midwest directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040708 by reason of misconduct due to a pattern of misconduct (A) with a service characterization of under other than 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 (B and C).  The Board presumed regularity in the conduct of governmental affairs (D).

By regulation, a discharge shall be deemed proper, unless it is determined that an error of fact, law, procedure, or discretion has substantially prejudiced the rights of the Applicant.  The Applicant was discharged under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  A review of the Applicant’s service record convinced the Board that a preponderance of evidence exists to support the Applicant’s basis for separation by virtue of his three NJPs and two NAVPERS 1070/613 retention warnings during his active duty service.  The Applicant was properly processed and notified for separation by reason of misconduct due to pattern of misconduct on 20040618 with a least favorable characterization of under other than honorable conditions.  On the same day, the Applicant waived his right to counsel as well as his right to appear before an administrative discharge board.  On 20040628, the Commanding Officer, Training Support Center, Great Lakes, IL, recommended that the Applicant be discharged under other than honorable conditions by reason of misconduct due to pattern of misconduct.  On 20040629, Commander, Navy Region Midwest, directed the Applicant’s discharge.  Based upon the above review, the Board unanimously concluded that the Applicant’s discharge processing was in compliance with applicable statutes, rules, and regulations.  Despite the Applicant’s contentions, The Board could find no error of fact, law, procedure, or discretion that might afford the Applicant relief.  Thus, the Board concluded that relief is not warranted.

The Applicant contends his discharge should be upgraded because of his good conduct during the discharge process.  Regulations require that a Sailor’s characterization of service be based upon the member’s total performance of duty and conduct during the current enlistment.  Furthermore, there are circumstances where conduct or performance of duty reflected by a single adverse incident may form the basis of characterization for a Sailor’s overall service.  The incident need not result in formal punishment to be properly used to characterize a Sailor’s service.  When the service of a member of the U.S. Navy has met the standard for acceptable conduct and performance, it is appropriate to characterize that service as honorable.  An under other than honorable conditions discharge is warranted when a member's conduct involves one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service.  The Applicant’s service was marred by three nonjudicial punishment proceedings for violations of UCMJ Articles 86 and 92,  and two NAVPERS 1070/613 retention warnings.  The Applicant’s total record of performance reflects his willful failure to meet the minimum standards required for an honorable discharge.  Relief is not warranted.

The Applicant contends that his medical issues were not considered in the discharge process, that racial or ethnic factors played a role in his separation and that he was wrongly pressured to waive his rights during the discharge process.  There is a presumption of regularity in the conduct of governmental 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 his 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 his contentions of maltreatment during the administrative discharge process.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  Relief denied.

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 any post-service documentation for the Board to consider.  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 2002 until 25 April 2005, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

D.  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 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