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NAVY | DRB | 2005_Navy | ND0500814
Original file (ND0500814.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-SR, USN
Docket No. ND05-00814

Applicant’s Request
The application for discharge review was received on 20050413. 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 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

 Applicant’s issues, as stated on the application:

“I feel as though I was not given the same equal opportunity and my case was a alcohol related case and was not treated as one.”
Documentation
In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:
Character Reference ltr from SN T_ D_, dtd March 23, 2005
Character Reference ltr from CTT3 B_ S_, undtd
Character Reference ltr from BM1(SW) T_ L. J_, dtd January 14, 2005
Letter from Applicant, dtd January 18, 2005
Evaluation Report and Counseling Record, dtd July 7, 2004
Evaluation Report and Counseling Record, dtd October 6, 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20000531 - 20010314      COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 20010315             Date of Discharge: 20041022

 Length of Service (years, months, days):

         Active: 03 07 07 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence:    48 days
         Confinement:                       None

 Age at Entry: 19

 Years Contracted: 4

 Education Level: 12                                 AFQT: 36

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.50 (4)                      Behavior: 3.00 (4)                OTA: 3. 13

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Navy “E” / Armed Forces Expeditionary Medal / Navy/Marine Corps Overseas Service / Global War on Terrorism Expeditionary Medal


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

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

 Chronological Listing of Significant Service Events :

030728:  Applicant to unauthorized absence at 0730 on 030728.

 030804:  Applicant missed ship’s movement.

 030915:  Applicant from unauthorized absence at 0600 on 030915 (48 days/surrendered). EAOS changed to 050502.
030919:  NJP. [Extracted from NAVPERS 1070/604.]

040816:  NJP. [Extracted from NAVPERS 1070/604.]

041002:  Forfeiture of pay and reduction in pay grade awarded at NJP on 040816 vacated due to continued misconduct.

041002:  NJP for violation of UCMJ Articles 91, 92, 117(2), 128, and 134. [Extracted from NAVPERS 1070/604 and Evaluation Report and Counseling Record dated 041011.]

041022:  DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct due to 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 20041022 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of under other than 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 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. An under other than honorable conditions discharge is warranted when a member's conduct involves one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service. T he Applicant’s service was marred by a 48 day unauthorized absence, missing ship’s movement, and unspecified violations of UCMJ Articles 91, 92, 117, 128, and 134. This misconduct resulted in three separate nonjudicial punishment proceedings. Under applicable regulations, violations of UCMJ Article 86, unauthorized absence for more than 30 days, Article 87, missing movement are considered serious offenses. 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. Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service. Relief is not warranted.

The Applicant implies that his misconduct was the result of alcohol abuse and his case was not treated as an alcohol abuse case. There is a presumption of regularity in the conduct of governmental affairs. This presumption permits the Board to presume that the government’s agents acted in good faith, proceeded within the bounds of the law, and conformed their behavior to appropriate standards during the Applicant’s Naval service and subsequent administrative processing. 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 support the contention that his case was mistreated or that alcohol abuse was involved. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. 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), 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 86, unauthorized absence for more than 30 days or Article 87, missing movement.

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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