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NAVY | DRB | 2005_Navy | ND0500393
Original file (ND0500393.rtf) Auto-classification: Denied


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

ex-DR, USN
Docket No. ND05-00393

Applicant’s Request
The application for discharge review was received on 20050103. The Applicant requests the characterization of service received at the time of discharge be changed to honorable or entry level separation or uncharacterized. The Applicant requests a documentary record discharge review. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050812. After a thorough review of the available 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/IN LIEU OF TRIAL BY COURT MARTIAL, authority: NAVMILPERSMAN, Article 1910-106 (formerly 3630650).



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I A___ B___ am respectfully requesting a change of discharge. I had some rough times in the past as a young guy, but please don’t allow my hardship and mistakes cause me my life; the rest of my life without full potential of becoming a successful person in which I know how to be. I am truly sorry for my mistakes I made during my truly rewarding time I spent as a shipmate. I have since then become a business owner and I am currently attending college with intent to further education in the dental field in which the U.S. Navy initially trained me to be a dental technician. Please consider me for a second change, that’s all I am asking for

Respectfully requested,
w/ sincere regards

[signed applicant]”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Reference Letter from T___ B___, undated (2pgs)
Reference Letter from Pastor M___ E. D___, undated, unsigned
Character Reference Letter Mrs. P___, undated, unsigned
Letter of Recommendation from B___ Z__ RDH dtd July 30, 2002 (2 copies)
Certificate of Recognition (Partnership in Education) dtd February 7, 2001 (2 copies)
Certificate of Recognition (Exceptional Dental Apprentice) dtd February 7, 2001 (2 copies)
Letter from Applicant dtd July 19, 2005
Fayetteville Technical Community College Transcript issued July 20, 2005
Certificate of Completion (Dental Assistant Apprentice) dtd February 8, 2001
Sailor ACE Registry Transcript dtd December 14, 2004 (4pgs)



PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     000411 - 000416  COG

 Period of Service Under Review :
Date of Enlistment: 000417               Date of Discharge: 011116

 Length of Service (years, months, days):

         Active: 01 07 00
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4 (12 month extension)

 Education Level: 10                        AFQT: 54

 Highest Rate: DN3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NA*                  Behavior: NA*             OTA: NA*

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: None

*Not available

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

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority: NAVMILPERSMAN, Article 1910-106 (formerly 3630650).

 Chronological Listing of Significant Service Events :

000411:  Enlistment waiver granted for simple worthless checks and dependency.

010702:  NJP for violation of UCMJ, Article 107: On or about 25 May 2001, with intent to deceive, make to SS2 G___, USN, an official statement, to wit: “I am a resident of the BEQ, which was totally false, violation of UCMJ, Article 86: On or about 4 June 2001 fail to go to his place of duty at the time prescribed, violation of UCMJ, Article 107: Was derelict in the performance of his duties in that he willfully did not use infection procedures in accordance with NDCJAXINST 6600.58 (para 11).
         Award: Reduction to E-2, extra duty for 45 days. No indication of appeal in the record.
010717:  Retention Warning: Advised of deficiency (Captain’s Mast 2 July 2001), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

011002:  Commanding Officer’s NJP this date. [Extracted from NAVPER 1070/604]

011031:  Applicant requested separation in lieu of trial. [Extracted from CO’s letter of 011116]

011116:  Applicant from confinement. [Extracted from valuables transaction report, Naval Consolidated Brig, Charleston, SC]

011116:  The Commanding Officer, exercising GCMCA, approved the request for an administrative separation in lieu of a trial by court-martial, and directed Applicant’s discharge.

Service Record contains a partial Administrative Discharge Package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20011116 under other than honorable conditions in lieu of a trial by court-martial (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).

Under the presumption of regularity, the Board presumed the Applicant requested discharge to escape trial by court-martial, had the elements of the offense(s) for which he was charged fully explained by counsel, that he was guilty of the offense(s) and that he had a complete understanding of the negative consequences of his actions. Neither the statements or documents submitted by the Applicant nor the evidence of record demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

An 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 nonjudicial punishment (NJP) proceedings on 20010702 for violations of Articles 86 and 107 of the UCMJ. The Applicant was also subject to NJP proceedings on 20011002 for another infraction, the circumstances of which are not available in the record. Subsequent to his second NJP, the Applicant requested separation in lieu of trial by court-martial for a serious offense, the specifics of which are not available in the record. 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 contends that he made mistakes when he was a “young guy.” While he may feel that his immaturity was the underlying cause of his misconduct, 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. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment. Relief is not warranted.

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 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 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. Naval Military Personnel Manual, (NAVPERS 15560C), Change 29, effective
11 Jul 2000 until 21 Aug 2002, Article 1910-106 (formerly 3630650), SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

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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