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

FOR OFFICIAL USE ONLY

ex-DN, USN
Docket No. ND06-00741

Applicant’s Request

The application for discharge review was received on 20060509.  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 20070302.  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) by reason of misconduct due to a pattern of misconduct.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

EQUITY – General (Under Honorable Conditions) is not merited considering the Applicant’s entire service.
EQUITY – Applicant was not fairly treated by his supervisors.
PROPRIETY – Applicant was denied the opportunity to consult with counsel regarding his administrative separation.

Documentation

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

Applicant’s DD Form 214 (Member 4)
Applicant’s DD Form 214 (Member 1)
Continuation of Issues (9 pgs), undated
Evaluation Report & Counseling Reports (8 pgs)
Worksheet for Separation (2 pgs), dated June 23, 2005
DD Form 2366 (GI Bill Application), dated July 12, 2000

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19991028 - 20000706	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20000707		Date of Discharge:  20050617

Length of Service (years, months, days):

	Active:    04  11  11  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  18 

Years Contracted:  4 (12-month extension)

Education Level:  12				AFQT:  37

Highest Rate:  DN

Final Enlisted Performance Evaluation Averages (number of marks):*

Performance:  3.0 (5)		Behavior:  2.2 (5)			OTA:  2.83

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 (2), Global War on Terrorism Service Medal

*Partially extracted from Applicant’s supporting documents.

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

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

Chronological Listing of Significant Service Events: 

020426:	NJP for violation of UCMJ, Article 86 (5 specs):  Fail to go/go from appointed place of duty.
	Violation of UCMJ, Article 92: Dereliction of duty.
	Award:  Forfeiture of $649.00 pay per month for 2 months (1 month suspended for 6 months), restriction and extra duty for 45 days (15 days suspended for 6 months), reduction in rate (suspended for 6 months).  No indication of appeal in the record.

020515:	Forfeiture of pay, reduction in pay grade and restriction awarded and suspended on 020426 vacated due to continued misconduct.

020528:	NJP for violation of UCMJ, Article 86 (3 specs):  Fail to go to appointed place of duty.
	Award:  Forfeiture of $100.00 for 1 month, restriction and extra duty for 15 days.  No indication of appeal in the record.

041101:	Applicant received counseling for performance and responsibilities.  [Extracted from report and disposition of offenses.]  

040512:	Commanding Officer’s NJP held this date for violation of Article 92 of the UCMJ, failure to obey order/regulation.  Award:  15 days restriction and extra duty, forfeiture of $100.00 per month for 2 months, reduction in rate.  Reduction suspended.  [Extracted from Applicant’s supporting documents.]

041207:	Letter form Master-at-Arms to Commanding Officer indicates that the Applicant did speak to Lt S_ in a disrespectful manner and did fail several room inspections.  Master-at-Arms recommended the case be forwarded to an enlisted disciplinary screening board for adjudication.

041209:	Enlisted Disciplinary Screening Board Report:  The Board found the Applicant had violated Articles 89 and 92.  The Board recommended nonjudicial punishment, reduction in rate, forfeiture of pay and that the Applicant complete anger management class.  Board further recommends that the reduction be suspended but that if the Applicant fails two more room inspections or commits any more misconduct, that he be administratively separated.

050223:	NJP for violation of UCMJ, Article 89:  Disrespectful to Lt S_ on 041026. 
Violation of UCMJ, Article 92:  On 040903, 041021 and 041029, fail to comply with a written order by receiving an “UNSAT” room inspection three times in less than three months.
Award:  Forfeiture of 1/2 pay per month for 1 month, correctional custody unit for 30 days, reduction to rate (suspended for 6 months).  No indication of appeal in the record 

050520:	NJP for violation of UCMJ, Article 92:  Failure to obey lawful written order on 050504.  Award:  Vacate reduction in rate, extra duties for 10 days.

050523:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct pattern of misconduct 

050524:	Applicant advised of rights and having elected to consult with counsel, elected to submit a written statement for consideration by separation authority and to obtain copies of the documents used to support the basis for separation.

050614:	Commanding Officer, Naval Health Clinic, Annapolis, MD, directed the Applicant's general (under honorable conditions) discharge by reason of pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050617 by reason of misconduct due to a pattern of misconduct (A and B) with a service characterization of general (under 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).

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.  In the Applicant’s case, in the absence of a complete discharge package and without credible and substantial evidence to refute the Board’s presumption, the Board invoked the presumption of regularity.  Specifically, the Board presumed that the Applicant was issued a retention warning prior to his last infraction of the UCMJ.  

The Applicant implies that his general (under honorable conditions) characterization is not merited because of his sea service, military and non-military educational efforts, awards, decorations and performance evaluations.  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.  A general or 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 four nonjudicial punishment proceedings for violations of Articles 86, 89 and 92 of the UCMJ.  Each violation of Article 89 and Article 92 of the UCMJ is considered the commission of a serious offense and is punishable by punitive discharge if awarded as part of the sentence upon conviction at special or general court-martial.  The Applicant’s conduct which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Relief is not warranted.

The Applicant implies that his discharge is not equitable because he was not treated fairly by his supervisors.  While he may feel that he was treated inequitably,  the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The Applicant implies that his discharge was improper because his supervisors interfered with his attempts to consult with legal counsel.  The Board found no indication in the record or the documentation provided by the Applicant that the Applicant was inequitably or improperly denied legal counsel.  The Applicant’s allegations do not refute the presumption of regularity in this case.  Relief denied.

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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, certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided sufficient post-service documentation to consider mitigating the misconduct that resulted in the characterization of discharge.  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.  The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this 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 11, effective 
26 April 2005 until Present, Article 1910-140, 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, Article 89, disrespect toward a superior commissioned officer or Article 92, failure to obey order/regulation.

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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

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