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Docket No. ND06-00924

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

FOR OFFICIAL USE ONLY

ex-OSSA, USN
Docket No. ND06-00924

Applicant’s Request

The application for discharge review was received on 20060705.  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 20070426.  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 commission of a serious offense.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

The Applicant did not submit any decisional issues.

Documentation

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

Applicant’s DD Form 214 (Member 1 and 4) (2)
One page from Applicant’s medical record (2)
Department of Veterans Affairs Form 21-4138, dtd July 24, 2006

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20020906 - 20020924	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20020925		Date of Discharge:  20040311

Length of Service (years, months, days):

	Active:    01  05  15  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  8 days
	Confinement:		  None

Age at Entry:  21

Years Contracted:  4

Education Level:  12				AFQT:  48

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0 (2)			Behavior:  2.5 (2)		OTA:  2.92

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

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  MILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events: 

030528:	Applicant to unauthorized absence.  [Extracted from DD Form 214, Block 29.]

030606:	Applicant from unauthorized absence.  [Extracted from DD Form 214, Block 29.]

030617:	NJP.  [Extracted from NAVPERS 1070/604, Awards.]

030805:	NJP for violation of UCMJ, Article 86: Unauthorized absence.
Violation of UCMJ, Article 92: Disobeying a lawful order.
	Award:  Correctional custody for 30 days.  No indication of appeal in the record.   [Date of NJP extracted from NAVPERS 1070/604 and information on NJP extracted from Evaluation Report and Counseling Record dated 040107.] 

040219:	NJP.  [Extracted from NAVPERS 1070/604, Awards.]

040311:	DD Form 214: Applicant discharged with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense, authority: MILPERSMAN 1910-142.

Service Record did not contain the Administrative Discharge package.  
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 20040311 by reason of misconduct due to commission of a serious offense (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 presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (E).

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted.  There is no evidence of impropriety or inequity in the Applicant’s discharge.  The Applicant’s misconduct is clearly documented.  Therefore, relief is denied.

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 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 3 nonjudicial punishment proceedings for violations of Articles 86 and 92 of the UCMJ.  Violation of UCMJ Article 92 is considered a serious offense for which a punitive discharge is authorized if adjudged by a 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.  Relief is not warranted.

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), re-issued October 2002, effective 22 Aug 02 until 25 April 2005, Article 1910-142 [formerly 3630605], SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

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 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