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NAVY | DRB | 2005_Navy | ND0500979
Original file (ND0500979.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-TMSN, USN
Docket No. ND05-00979

Applicant’s Request
The application for discharge review was received on 20050524. The Applicant requests her characterization of service received at the time of discharge be changed to honorable and the narrative reason for separation be changed to “RE code.” The Applicant requests a personal appearance hearing discharge review before the Board in the Washington, D.C. Metropolitan Area or a personal appearance hearing discharge review before a traveling panel closest to St. Louis, MO. The Applicant did not designate a 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 DC area. 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 20051013. 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 both the characterization of service and reason for discharge shall not change. The discharge shall remain General (Under Honorable Conditions) by reason of misconduct due to the commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application and attached document/letter:

“The reason for separation was not due to conduct, but because my dependent status changed. On DD214, on line 28, it states misconduct. This was not the reason for my separation. My father could not longer assist me in caring for my child. This information can all be verified”.
“To whom it may concern:

I, J_ M. C_ (Applicant), entered active duty in the U.S. Navy on 95 December 05, and was discharged in 97 December 12 with an RE-4 discharge (general under honorable conditions). During this time of service, I went to Captain’s Mast for underage drinking. The captain gave me thirty days of restriction for my misconduct, which I served in full. Two months later I was supposed to sign my dependency care certificate update, but my current care provider’s situation had changed. This prevented me from having a proper care giver for my dependent, which resulted in the non-compliance of naval standards. At that time I had to be discharged due to the non-compliance, and since I had previously went to mast, I was given an RE-4 discharge (general under honorable conditions). I hope you reconsider my discharge code and reassign me an honorable code. Thank you.

Sincerely,
[signed]
J_ M. C_”

 Documentation
 In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (2)
Twentieth Judicial Circuit St. Clair County, Custody Documents, dtd 30 Aug 1995 (2 pgs)
Twentieth Judicial Circuit St. Clair County, Custody Documents, dtd 25 Mar 1996 (3 pgs)
Twentieth Judicial Circuit St. Clair County, Custody Documents, dtd 17 Apr 1996
Certificate of Completion from Fleet Training Center Training Unit, Naval Air Station North Island, San Diego, California
Evaluation Report & Counseling Record period of 05 Dec 1995 – 15 Jul 1996 (2 pgs)
Evaluation Report & Counseling Record period of 16 Jul 1996 – 15 Jan 1997 (2 pgs)
Evaluation Report & Counseling Record period of 16 Jan 1997 – 15 Jul 1997 (2 pgs)
Letter from Applicant, dtd 15 Sep 2005
Dependency Application (2 pgs)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19950913 – 19951204              
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19951205             Date of Discharge: 19971212

 Length of Service (years, months, days):

         Active: 02 00 08 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 1 day
         Confinement:              none

 Age at Entry: 19

Years Contracted: 4

Education Level: 12                                 AFQT: 51

 Highest Rate: TMSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.0 (4)     Behavior: 2.5 (4)                 OTA: 2 .96 (4)

 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 :

960909:  Applicant to unauthorized absence at 0500 on 960909.

 960910:  Applicant from unauthorized absence at 0700 on 960910 (1 days/surrendered).

970615:  Commanding Officer’s nonjudicial punishment.
Service Record did not contain the Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19971212 by reason of misconduct due to the commission of a serious offense (A and B), with a service characterization of general (under honorable conditions). After a thorough review of all 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).

 To be legally sufficient, a finding of misconduct due to the commission of a serious offense requires only a showing, by a preponderance of the evidence, that misconduct, which would warrant a punitive discharge if tried by special or general court-martial, has occurred. A general (under honorable conditions) discharge is warranted when significant negative aspects of a member's conduct or performance outweigh the positive aspects of the member's military record. The Applicant’s service was marred by nonjudicial punishment (NJP) and an unadjudicated unauthorized absence. The Applicant admits in her letter that she went to NJP for underage drinking. This infraction of the UCMJ is normally charged as a violation of Article 92 (disobey an order). This violation is defined as the commission of a serious offense, the misconduct for which the Applicant was discharged. Applicable regulations require that a Sailor’s characterization of service be based upon the member’s total performance of duty and conduct during the current enlistment. Furthermore, there are circumstances where conduct or performance of duty reflected by a single adverse incident may form the basis of characterization for a Sailor’s overall service. Separation under these conditions generally results in a less than honorable characterization of service. Relief is not warranted.

The Applicant alleges that her discharge is improper because she was processed for “non-compliance”. The burden of presenting substantial and credible evidence to support her issue is borne by the Applicant. However, she provided no evidence and there is no evidence in the record to support this claim of impropriety. To the contrary the record does document unauthorized absence and nonjudicial punishment. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant’s statements alone do not overcome this presumption. Based upon the evidence of record, the Board presumed that the Applicant’s discharge was conducted in strict compliance with reference (A) resulting in a characterization of service as general (under honorable conditions) by reason of the commission of a serious offense. T he NDRB found no improprieties or inequities in the Applicant’s discharge processing . Relief denied.

The Applicant contends that her discharge was improper as she considers the discharge as further punishment following her NJP. For the edification of the Applicant, 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. Based upon the evidence of record, the NDRB found no improprieties or inequities in the Applicant’s discharge processing. The Applicant’s issue is without merit. Relief denied.

The Applicant requested that the reason for her discharge be changed to “RE code”. The NDRB, under its responsibility to examine the propriety and equity of a discharge, will change the reason for discharge if such a change is warranted. The service record documents NJP, which the Applicant claims resulted from underage drinking. This substantiates the misconduct by commission of serious offense, which resulted in the Applicant’s discharge. No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. To change the Narrative Reason for Separation would be inappropriate. 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 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 provided a letter, evaluations from her service record and custody records for the Board’s consideration. After careful consideration, the Board concluded the Applicant’s post-service achievements have been insufficient to mitigate her misconduct while in the Naval service. 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. The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to her 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 92 (failure to obey order i.e. underage drinking).

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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