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NAVY | DRB | 2005_Navy | ND0500245
Original file (ND0500245.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-FN, USN
Docket No. ND05-00245

Applicant’s Request
The application for discharge review was received on 20041115. 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 20051117. 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 and reason for 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 - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“I am now working in security and is trying to take a supervisor position. This is the one thing that is holding me back. I also do a great deal of volunteer work.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Certificate of Appreciation for Excellent Voluntary Service in 2000 in the Jackson Health System
Certificate of Appreciation for Excellent Voluntary Service in 2001 in the Jackson Health System
Birthday Letters from Friends at Jackson’s Volunteer Department (2)
Letter from S_ F_, Senior Rehabilitation Specialist, Florida Department of Education Division of Blind Services, dtd August 21, 2001
Good Conduct Letter (Criminal Records Check) from City of Miami dtd January 25, 2000
Letter from G_D. F_, Chief, Voluntary & Community Resources Section Department of Veterans Affair, dtd March 12, 1999
Letter of Recommendation from M_ C. L_, Director Volunteer Services, dtd October 13, 1999 (2)
Reference Letter from M_ W. T_, Credit Representative, Jackson Health System, dtd June 3, 2003
Volunteer Reference Letter from O_ P_, R.N. Head Nurse Child & Adolescent Unit, Jackson Memorial Hospital, dtd June 5, 2003
Letter of Recommendation from M_ C. L_, Director Volunteer Services, dtd June 3, 2003
Reference Letter from M_ W. T_, Credit Representative, Jackson Health System, dtd June 3, 2003 (handwritten)
Certificate of Completion for Introduction to Port Security F.S.S. 311.12, dtd August 2004
Certificate of Completion for Port Facility Security Force, dtd July 30, 2004
Maritime Security Identification Card from Broward County Florida Port Everglades (2)
Maritime Security Screener Certificates and ID Cards

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19941208 – 19941212               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19941213             Date of Discharge: 19980319

 Length of Service (years, months, days):

         Active: 03 03 06 (Does not exclude lost time)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 185 days
         Confinement:              none

 Age at Entry: 19

Years Contracted: 4

Education Level: 12                                 AFQT: 33

 Highest Rate: FN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (1)             Behavior: 3.00 (1)                OTA: 3.00 5.0 scale
                  3.6 (1)                           3.6 (1)                           3.8 4.0 scale

 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.
Chronological Listing of Significant Service Events :

960314:  NJP for violation of UCMJ, Article 86 (23 specs): UA from on or about 1445, 960205 until on or about 0700, 960206, and on or about 960212, did without authority, go from his appointed place of duty.
 Violation of UCMJ, Article 91: On or about 960212, did treat with disrespectful language and deportment toward EN2 C_, USN.
         Award: Forfeiture of $100 per month for 1 month, restriction and extra duty for 10 days, reduction in rate. Reduction in rate suspended for 3 months. No indication of appeal in the record.

970220:  President, Physical Evaluation Board, notified Chief of Naval Personnel that the Applicant was found unfit to perform his duties due to a physical disability. The Applicant was recommended for separation with a 10% disability rating.
970225:  BUPERS directed the Applicant’s separation by reason of physical disability.
970305:  Transient Personnel Unit, Norfolk, requested the Applicant’s discharge be held in abeyance due to him being placed in legal hold pending investigation on legal charges.
970310:  BUPERS directed the Applicant’s discharge be held in abeyance pending admin investigation. Updates should be made with PERS-271 and PEB every 30 days concerning this case.
970613:  Applicant to unauthorized absence at 0730 on 970613.

 970619:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 970619 having been an unauthorized absentee since 0730, 970613 from TPU NORVA.
971215:  Applicant from unauthorized absence at 1200 on 971215 (185days/surrendered).
971215:  Applicant returned to military control 1200, 971215.

971215:  Applicant restored to full duty 1200, 971215.

980319:  Applicant discharged with a general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.

980504:  BUPERS reported the PEB findings in the Applicant’s case. PEB reported Case Terminated.

 Service Record did not contain the Administrative Discharge Package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19980319 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 available 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).

 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. 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 for behavior not sufficiently meritorious to warrant an honorable discharge. T he Applicant was awarded nonjudicial punishment (NJP) on 19960314 for violations of UCMJ Article 86, unauthorized absence, and 91, disrespect to a superior toward a superior petty officer. Although the record is incomplete, the evidence of record also indicates the Applicant was in an unauthorized absence status for 185 days. An unauthorized absence of 30 days or more is considered a serious offense. The government enjoys a presumption of regularity in the conduct of its affairs. This presumption permits the Board to presume that the Applicant committed the misconduct for which he was separated and the government obeyed all applicable regulations in the separations process. The Applicant bears the burden of establishing his issues through the presentation of substantial and credible evidence. There is no evidence in the record, nor has the Applicant produced any evidence, to rebut the government’s presumption of regularity in this case. By unanimous vote, the NDRB applied the presumption of regularity and, on that basis, concluded the Applicant was properly processed and discharged in accordance with applicable Naval regulations. The NDRB found the discharge was both proper and equitable. Relief is not warranted.

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 could 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. The Board received and considered all of the Applicant’s submissions, including his volunteer work at the Jackson Health System, his employment in the security field, and his character reference letters. After careful consideration, the Board concluded the Applicant’s post-service achievements have been insufficient to mitigate his misconduct while in the Naval service. Relief denied.

 There is no requirement or law that grants recharacterization solely on the issue of enhancing employment opportunities and this issue does not serve to provide a foundation upon which the Board can grant relief. 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. The Applicant can provide any additional documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time. 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 97 until 29 March 2000, 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 86, unauthorized absence for more than 30 days.
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

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