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Docket No. ND06-00519

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

FOR OFFICIAL USE ONLY

 ex-AR, USN
Docket No. ND06-00519

Applicant’s Request

The application for discharge review was received on 20060228.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area.  The Applicant did not designate a representative on the DD Form 293.

Decision

A personal appearance hearing review was conducted in Washington, D.C. on 20061101.  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 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:

“My discharge was inequitable because of unjust documentation and testimony.”

The Applicant added an additional issue on November 1, 2006 as follows:

“I would like for you to consider my post service accomplishments, since my discharge I attended Tidewater in Newport News, VA 23608 and completed my course of computer technology.”

Documentation

In addition to the service and medical records, 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)	20011003 - 20011114	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20011115		Date of Discharge:  20040624

Length of Service (years, months, days):

	Active:    02  07  10  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  19 days
	Confinement:		  None

Age at Entry:  20

Years Contracted:  4 (12-month extension)

Education Level:  12				AFQT:  41

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.0 (1)			Behavior:  1.0 (1)		OTA:  1.50

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal, Sea Service Deployment Ribbon

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: 

030726:	Applicant to unauthorized absence at 0700 on 030726.

030728:	Applicant from unauthorized absence at 0730 on 030728 (2 days/surrendered).

030819:	NJP for violation of UCMJ, Article 86: Unauthorized absence (03/07/26-03/07/28).
Violation of UCMJ, Article 91: Disrespect to a First Class Petty Officer.
	Award:  Forfeiture of $675 per month for 2 months, restriction and extra duty for 15 days, reduction to E-2.  Forfeiture suspended for 6 months.  No indication of appeal in the record.

030822:	Retention Warning:  Advised of deficiency (CO’s NJP held 19 Aug 03 for Violation of the UCMJ, Article 86 – Unauthorized absence (03/07/25-03/07/28) and Article 91 – Disrespect to a First Class Petty Officer.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

040329:	Applicant to unauthorized absence on 040329. [Extracted from Commanding Officer’s letter dated 040608.]
 
040330:	Applicant from unauthorized absence on 040330 (1 day).  [Extracted from Commanding Officer’s letter dated 040608.]

040406:	Applicant to unauthorized absence on 040406.  [Extracted from Commanding Officer’s letter dated 040608.]

040407:	Applicant from unauthorized absence on 040407 (1 day).  [Extracted from Commanding Officer’s letter dated 040608.]

040430:	Applicant to unauthorized absence on 040430.  [Extracted from Commanding Officer’s letter dated 040608.]

040504:	Applicant from unauthorized absence on 040504 (4days). [Extracted from Commanding Officer’s letter dated 040608.]

040504:	Applicant to unauthorized absence on 040504.  [Extracted from Commanding Officer’s letter dated 040608  and DD Form 214, Block 18.]

040517:	Applicant from unauthorized absence on 040517 (13 days).  [Extracted from Commanding Officer’s letter dated 040608 and DD Form 214, Block 18.]

040528:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable by reason of misconduct – pattern of misconduct and misconduct – commission of a serious offense.

040528:	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 and to submit a statement.

040528:	Applicant to unauthorized absence on 040528.  [Extracted from DD Form 214, Block 18.]

040601:	Applicant from unauthorized absence on 040601 (4 days).  [Extracted from DD Form 214, Block 18.]

040601:	NJP for violation of UCMJ, Article 86 (4 specs):  UA on divers occasions from 29 – 30 March 2004, 6 – 7 April 2004, 30 April – 4 May 2004, and 4 May – 17 May 2004.
Violation of UCMJ, Article 91 (3 specs): Willfully disobeying order on 15 April and 1 June 2004; and disrespect to a senior chief petty officer on 1 June 2004.
	Award:  Restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.  [Extracted from Commanding Officer’s letter dated 040608.]

040608:	Commanding Officer, USS THEODORE ROOSEVELT (CVN 71) recommended discharge under other than honorable conditions by reason of misconduct – pattern of misconduct, and misconduct – commission of serious offense.  Commanding Officer’s comments:  “AR S_(Applicant) first appeared before me at CO’s Mast on 20 August 1993 for unauthorized absence and disrespect to a first class petty officer.  At that time, he worked in the Air Department.  He was punished, counseled via a Page 13 warning, and directed to conform his behavior to military standards.  He became an administrative burden to the Air Department and was subsequently transferred to the Deck Department.  It did not take AR S_(Applicant) long to begin behaving the same way he did while attached to the Air Department. His numerous instances of unauthorized absence offenses and disrespect to senior leadership are indicative of his character.  He blames everyone for his problems, but himself.  He has been given every opportunity to abide by the rules and regulations.  His behavior is a detriment to the good order and discipline of my command.  Accordingly, I recommend he be separated with a discharge characterized as Other than Honorable.”

040615:	Applicant not recommended for advancement to E-3 due to adverse evaluation.

040617:	Commander, Cruiser-Destroyer Group EIGHT directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct.

060112:	NDRB documentary record review Docket Number ND05-00723 conducted.  Determination: discharge proper and equitable; relief not warranted.

Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040624 by reason of misconduct due to a pattern of misconduct (A and B) 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 (C and D).  The Board presumed regularity in the conduct of governmental affairs (E).

In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.  Specifically, Applicant alleged that his “discharge was inequitable because of unjust documentation and testimony.”  During the hearing, the Applicant clarified that the injustice he referred to was unfair treatment by his immediate chain of command and Commanding Officer culminating in what he felt were two unfair nonjudicial punishments.  The record, however, contains no evidence of any wrongdoing by the Applicant’s Commanding Officer or anyone else for that matter in the discharge process.  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.  The Applicant’s statements alone do not overcome the government’s presumption of regularity.  There is no evidence in the record, nor has the Applicant produced any corroborating evidence, to support his contentions.  As such, this Board presumed that Applicant’s discharge was regular in all respects.  Relief denied.  

The Applicant requested that we consider his post service conduct in assessing the merits of his application.  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 the service.  The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that 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 sufficient post-service documentation for the Board to consider.  Relief denied.

The following is provided for the edification of the Applicant.  The Applicant has exhausted his opportunities for review by the NDRB.  If further review is desired, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service.

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.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Articles 91 (disrespect to a superior noncommissioned officer and willfully disobeying a noncommissioned officer).

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

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

E.  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