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NAVY | DRB | 2005_Navy | ND0500617
Original file (ND0500617.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-ABEAR, USN
Docket No. ND05-00617

Applicant’s Request
The application for discharge review was received on 20050304. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). 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 20050819. After a thorough review of all 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 and reason for discharge shall not change. The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 The Applicant submitted no issues.
Documentation
In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:
Consent for release of personal record information, dtd October 26, 2004

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19980529 - 19980622                       
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19980623             Date of Discharge: 19990217

 Length of Service (years, months, days):

         Active: 00 07 26 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 25 days
         Confinement:              None

 Age at Entry: 32

 Years Contracted: 4

 Education Level: 12                                 AFQT: 35

 Highest Rate: ABEAR

 Final Enlisted Performance Evaluation Averages (number of marks):

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

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214) : None

* Not Available

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 1910-142.
Chronological Listing of Significant Service Events :

981026:  Applicant to unauthorized absence, 0615.

 981028:  Applicant from unauthorized absence, 0135 (1 day/surrendered).
981029:  Applicant unauthorized absence, 0615 to 0730, place of duty.

 981113:  Applicant to unauthorized absence, 0615.

 981202:  Applicant from unauthorized absence, 1300 (19 days/surrendered).
981203:  Applicant to unauthorized absence, 0615.

 981208:  Applicant from unauthorized absence, 0615 (5 days/surrendered).
981208:  Applicant found fit for duty/confinement (bread and water).

 981216:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86 (4 specs):
         Specification 1: UA, 98OCT26 - 98OCT28
         Specification 2: UA, place of duty, 0615 - 0730, 98OCT29
         Specification 3: UA, 98NOV13 - 98DEC02
         Specification 4: UA, 98DEC03 - 98DEC08
         Charge II: violation of the UCMJ, Article 91 (2 specs):
         Specification 1 and 2: Disrespect in language toward a Master-At-Arms on 98OCT28.
         Charge III: violation of the UCMJ, Article 128 (2 specs):
         Specification 1 and 2: Assault on a Master-At-Arms on 98OCT28.
         Charge IV: violation of the UCMJ, Article 134:
         Specification: Drunk and disorderly on 98OCT28.
          Finding: to Charge and the specification there under, guilty.
          Sentence: Forfeiture of $619.00, restriction for 60 days.
         CA action 990104: Sentence approved and ordered executed, however 22 days of restriction credit will be applied.
        
990217:  DD Form 214: Applicant discharged with a under other than honorable conditions by reason of commission of a serious offense.

Service Record did not contain the Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19990217 by reason of misconduct due to commission of a serious offense (A) with a service characterization of under other than 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 (B and C). The Board presumed regularity in the conduct of governmental affairs (D).

The Applicant introduced no decisional issues for consideration by the Board.

 Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. After a thorough review of Applicant’s case the Board discovered no impropriety or inequity. When the service of a member of the U.S. Navy has met the standard of acceptable conduct and performance, it is appropriate to characterize that service as honorable. 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. Certain serious offenses warrant separation from naval service in order to maintain proper order and discipline. The Applicant’s service was marred by a Summary Court-Martial conviction for violations of UCMJ Article 86 (unauthorized absence), Article 91 (disrespect), Article 128 (assault), and Article 134 (drunk and disorderly) thus substantiating the misconduct by commission of a serious offense for which she was separated. The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects her willful failure to meet the requirements of her contract with the U.S. Navy and falls short of that required for an upgrade in the characterization of service. Relief is not warranted.

In the absence of a discharge package, the Board presumed regularity of governmental affairs. Therefore, the Board presumed the Applicant’s discharge to have been conducted in accordance with that described in reference “A.” If the Applicant feels her discharge was administratively flawed she bears the burden of establishing her issues through the presentation of substantial and credible evidence. The evidence of record does not demonstrate that the Applicant was not responsible for her conduct or that she should not be held accountable for her actions.

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, and certification of non-involvement with civil authorities. The Applicant has not provided documentation for the Board to consider.

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 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. 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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