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Docket No. ND05-01482

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

FOR OFFICIAL USE ONLY

 ex-SR, USN
Docket No. ND05-01482

Applicant’s Request

The application for discharge review was received on 20050908.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions).  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 20060619.  After a thorough review of the available 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 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:

“The day I was discharged from the ship (USS SUPPLY), when I had to pack my things, I was told to take out all of my things that had U.S. Navy or USS SUPPLY on them (eg. Shirts, Coveralls, Work and Dress Uniform, Boots, etc) and leave them with the master at arms who was overseeing me packing my things.  He said he was instructed to confiscate them.  I think it was unjust and not right since I paid for those items and all of them didn’t have U.S. Navy on them.  I was wondering if that was the thing to do because I was being discharged.  If was done unjustly, what can I do about that? or can my dress uniform be replaced.”

Documentation

Only the service and medical records were reviewed.  The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19991203 – 19991220		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19991221		Date of Discharge:  20010419

Length of Service (years, months, days):

	Active:    01  03  29  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  22 days
	Confinement:		  none

Age at Entry:  21

Years Contracted:  4 

Education Level:  12				AFQT:  48

Highest Rate:  SA

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):  Armed Forces Expeditionary Medal.

* 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: 

991228:	Retention Warning:  Advised of deficiency (Failure to disclose pre-service civil involvement/convictions: Driving without a license, September 1998, Dawson, GA.  You went to court and were awarded a $600.00 fine, 24 hours community service, and 12 months probation, of which you did not pay or serve, and an arrest warrant was issued.  You were arrested September 1999, and charged with giving false information to a police officer, Decatur, GA.  You were sentenced to time served (28 days) and placed on non-reporting probation for twelve months.  The information concerning the above incident was relied upon from a police record inquiry, a voluntary statement from you, and information provided by you at Moment of truth.  Be advised that if any further misconduct is discovered which was not disclosed or the information provided is discovered to be false, this page 13 may be considered void.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

000402:	Applicant failed to report on 000402 IAW EPMAC order 0320 250-49-0333/SA (EPMAC-471H).

000421:	Applicant surrendered to Military Control at BMC, Albany, GA, on 000421.  Applicant issued transportation at government expense from JAX, FL to Newark, NJ.  Applicant arrived at USS SUPPLY in Port NWS Earle, NJ, on 000424.

000512:	Retention Warning:  Advised of deficiency (Commanding Officer’s Non-judicial Punishment held on 000512 for violation of the UCMJ, Article 86-Unauthorized absence from unit 3-21 April 2000 (18 days)), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

000512:	NJP for violation of UCMJ, Article 86:  Unauthorized absence from 3-21 April 2000.
Award:  Forfeiture of $563.00 per month for 1 month, restriction and extra duty for 45 days.  No indication of appeal in the record.

000623:	NJP for violation of UCMJ, Article 92 (2 specs): Violation of a lawful general regulation, to wit: Instruction and possession of alcohol on board a naval vessel.
	Award:  Forfeiture of $502.00 pay per month for 2 months, restriction to limits of ship and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

000721:	NJP for violation of UCMJ, Article 86: Failure to go to appointed place of duty.
	Award:  Forfeiture of $300.00 pay per month for 1 month ($150.00 pay per month suspended for 6 months), restriction for 15 days (suspended for 6 months).  No indication of appeal in the record. 

010225:	NJP for violation of UCMJ, Article 86 (2 specs): Unauthorized absence from unit.
Award:  Forfeiture of $521.00 pay per month for 2 months, restriction to the limit of the ship and extra duty for 45 days.  No indication of appeal in the record.

010419:	DD Form 214: Applicant discharged in absentia under other than honorable conditions by reason of misconduct due to pattern of misconduct, per MILPERSMAN 1910-140. 

Service Record did not contain the Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged in absentia on 20010419 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 available 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).

In the absence of a complete discharge package, the Board presumed that the Applicant was properly notified, processed, and discharged in accordance with MILPERSMAN 1910-140 (formerly 3630600).  The Applicant bears the burden of overcoming this presumption of regularity by presenting any substantial and credible evidence.  The Applicant did not provide any documentary evidence to challenge the propriety or equity of the discharge.  Therefore, the Board considered the Applicant’s discharge proper and equitable.  Relief not warranted.

The Applicant contends “things that had U.S. Navy or USS SUPPLY on them” were unjustly confiscated upon his separation.  The Applicant requests that his dress uniforms be replaced.  The Applicant’s issue is beyond the scope of this Board.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In order to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  There is no evidence in the record, nor has the Applicant produced any evidence, to support an allegation of command misconduct during the discharge process.  Since his issue of replacing dress uniforms does not serve to provide a foundation upon which the Board can grant relief, relief on this basis is denied.

When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  Characterization of service as under other than honorable conditions 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.  There is irrefutable evidence that the Applicant’s conduct during his time in the Navy was not honorable.  Indeed, the Applicant’s records contain:
•	Retention warning entry on 1991228 for deficiencies in performance and conduct;
•	Non-judicial punishment proceedings on 20000512 for violation of UCMJ Article 86 Unauthorized absence;
•	Retention warning entry on 2000512 for deficiencies in performance and conduct;
•	Non-judicial punishment proceedings on 20000623 for violation of two specifications of UCMJ Article 92 Failure to obey order, regulation;
•	Non-judicial punishment proceedings on 20000721 for violation of UCMJ Article 86 Unauthorized absence; and
•	Non-judicial punishment proceedings on 20010225 for violation of two specifications of UCMJ Article 86 Unauthorized absence.
The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls well below that required for a general characterization of service.  An upgrade would be inappropriate; therefore relief is 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), 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 5420.174D 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