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NAVY | DRB | 2004_Navy | ND04-01204
Original file (ND04-01204.rtf) Auto-classification: Denied


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


ex-SA, USN
Docket No. ND04-01204

Applicant’s Request
The application for discharge review was received on 20040722. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record review. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20050118. 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)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-144 (formerly 3630610).


PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues, as stated
Applicant’s issues, as stated on the application:

 1. “My discharge is improper because I wasn’t aware of the civilian charges pending against me or I would’ve never wanted to join the military. What I’m trying to say is that they didn’t put the indictment out on me until I was almost 2 yrs military service. My service record was good, I had officers speak on my behalf but they came to a conclusion that I was fleeing a charge I didn’t even know about. I couldn’t convince the board that I didn’t know of the charge. I just wanted to retire from the Navy with medals of honor and start my kids in that direction. Now 6 yrs later I am incarcerated for the same charge that got me removed from the thing I love the most.

I just want to be able to take advantage of the military benefits I earned from hard labor and patriotism I showed in my brief stay in the U.S. Navy.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     970509 - 970914  COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 970915               Date of Discharge: 981125

 Length of Service (years, months, days):
         Active: 01 02 09
         Inactive: None
Age at Entry: 21                          Years Contracted: 4

 Education Level: 12                        AFQT: 35
Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 2.00 (1)             Behavior: 2.00 (1)                OTA: 2.20

 Military Decorations: None
Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: None
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MILPERSMAN, Article 1910-144 (formerly 3630610).

 Chronological Listing of Significant Service Events :

980526:  Applicant commenced a period of unauthorized absence by virtue of his arrest and extradition on civilian charges of cocaine distribution.
980624:  Applicant released on bond this date. Civilian trial scheduled for 980825.

 980730:  Report of Declaration of Deserter: Applicant declared a deserter this date having been in a UA status since 980526.

981123:  Applicant attended pre-separation counseling on board USS BRIDGE (AOE 10) this date.
981125:  Applicant discharged with a general (under honorable conditions) discharge by reason of misconduct due to civil conviction based upon findings and recommendations of an administrative discharge board.
Complete discharge package unavailable

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19981125 with a general (under honorable conditions) discharge for misconduct due to civil conviction (A). 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 presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).

Issue 1: Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question. No such impropriety or inequity is evident during the Applicant’s enlistment. The Applicant bears the burden of overcoming the presumption of regularity through the presentation of substantial and credible evidence to support his issue. The Applicant has submitted no documentation or other evidence to rebut the presumption that the Applicant was properly discharged by reason of civilian conviction. Likewise, the Applicant submitted no documentation or other evidence to rebut the presumption that the Applicant’s conduct while in the armed forces was not sufficiently meritorious to warrant an honorable discharge. As such, the Board presumes that the Applicant’s discharge was both proper and equitable. Relief denied.

The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

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. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 21, effective 01 Sep 98 until 15 Sep 99, Article 1910-144 (previously 3630610), Separation by Reason of Misconduct - Civilian Conviction.

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, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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


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