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NAVY | DRB | 2005_Navy | ND0500858
Original file (ND0500858.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-CSSA, USN
Docket No. ND05-00858

Applicant’s Request
The application for discharge review was received on 20050425. The Applicant requests the characterization of service received at the time of discharge be changed to honorable or general (under honorable conditions). Applicant requests a personal appearance hearing discharge review before a traveling panel closest to Houston, TX. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington National Capital Region. The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing.


Decision

A documentary discharge review was conducted in Washington, D.C. on 20050811. 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: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“1. Wrongfully Discharged for something I did not do. I was accused of assaulting some one. The person I was accused of assaulting even told the captain that it didn’t happen, and had another witness give the same story. I was still discharge.”

“2. I also suffered double jeopardy for punishment. I served 30 days Restriction, extra duty and ½ month’s pay X’s 2. When that was over I was discharged.”

“3. Witness MS3 R_ USS George Washington PC3 L_ USS George Washington both willing to testify to that please contact.”

“4. I’m trying to work and go to school but my discharge won’t allow it. I would really like to come back to the service. I loved being in the service and never planned on getting in trouble. I really need your help.”

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


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     010208 - 010227  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 010228               Date of Discharge: 040413

 Length of Service (years, months, days):

         Active: 03 01 16
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4 (12 month extension)

 Education Level: 12                        AFQT: 33

 Highest Rate: MS3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.00 (1)             Behavior: 2.00 (1)                OTA: 3 .43

 Military Decorations: None

 Unit/Campaign/Service Awards: National Defense Service Medal

 Days of Unauthorized Absence: None

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

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

 Chronological Listing of Significant Service Events :

010727:  NJP for violation of UCMJ, Article 121: Larceny of property other than military property of a value of $100.00 or less.
         Award: Forfeiture of 242.32 for 7 days, restriction and extra duty for 14 days. No indication of appeal in the record.
010727:  Retention Warning: Advised of deficiency (Officer in Charge’s Nonjudicial Punishment held on 27 July 01. Specifically, for stealing from the Base Exchange, Lackland AFB, Texas), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
         
031218:  NJP for violation of UCMJ, Article 91: Insubordinate conduct toward Master Chief Petty Officer on or about 5 November 2003, by saying “I was wondering how long it would take you rude f_er to ask,” “you don’t even try to turn your f_ing wheels to get out of the f_ing parking spot, you rude mother-f_er,’ or words to that effect.
         Award: Forfeiture of $670.00 pay per month for 2 months, restriction and extra duty for 30 days, reduction to E-3. No indication of appeal in the record.
040313:  NJP for violation of UCMJ, Article 128: Assault consummated by a battery in that he unlawfully struck another service member with an open hand in the leg numerous times.
         Award: Forfeiture of $693.00 pay per month for 2 months, restriction and extra duty for 30 days, reduction to E-2. No indication of appeal in the record.

040319:  Applicant notified of intended recommendation for discharge by reason of misconduct due to pattern of misconduct and misconduct due to commission of a serious offense. Applicant notified that the least favorable characterization of service possible is under other than honorable conditions.
040319:          Applicant advised of his rights and having elected not to consult with qualified counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
040325:  Commanding Officer, USS GEORGE WASHINGTON (CVN-73), recommended discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct and misconduct due to the commission of a serious offense. Commanding Officer’s comments (verbatim): “CSSA C_ (Applicant) has been nothing but an administrative burden to his department, command, and the Navy. He has been given numerous chances to turn himself around during his naval career and has failed to do so. CSSA C_’s conduct clearly shows that he is unable or unwilling to comply with Navy rules and regulations. His behavior is totally incompatible with the good order and discipline of the naval service. Therefore, I recommend that CSSA C_ be separated from the naval service with an Other Than Honorable discharge.”

040327:  Commander, Carrier Group EIGHT authorized the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

040413:  DD-214: Applicant discharged under other than honorable conditions by reason of misconduct due to commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040413 under other than honorable conditions for misconduct due to commission of a serious offense (A and B). The Board presumed regularity in the conduct of governmental affairs (C). 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 (D and 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 significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. T he Applicant’s service was marred by larceny from the Base Exchange, insubordinate conduct toward a Master Chief Petty Officer and assault. This misconduct resulted in three nonjudicial punishment proceedings for violations of UCMJ Articles 91, 121 and 128. Under applicable regulations, a violation of UCMJ Article 91, 121, or 128 is considered a serious offense. 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 contends that he is innocent of the assault charge and that he has witnesses to prove it. The government enjoys a presumption of regularity in the conduct of its affairs. 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 he is innocent of the charged assault. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. However, even if the Applicant could prove his innocence to the charged assault, the NBRD notes that the Applicant’s record contains ample evidence of other misconduct justifying the Applicant’s under other than honorable conditions characterization of service. Relief is not warranted.

The Applicant contends that his discharge was inequitable because he considers his punishment at NJP and subsequent administrative separation to be “double jeopardy.” The Applicant’s issue is without merit. Administrative discharge processing is a separate and distinct process from punitive proceedings such as NJP and court-martial. Furthermore, administrative discharge processing is administrative in nature and not considered a form of punishment. As such, the Applicant’s contention that he was punished twice for the same misconduct is erroneous. Based upon the evidence of record, the NDRB found no improprieties or inequities in the Applicant’s discharge processing. Relief denied.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

There is no requirement or law that grants recharacterization solely on the issue of obtaining enhancing employment or educational 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. 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 Present, Article 1910-142 [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B. In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 91, insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer, Article 121, larceny, or Article 128, assault, if adjudged at a Special or General Court Martial.
C. 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.

D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 E. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .



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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