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NAVY | DRB | 2005_Navy | ND0501048
Original file (ND0501048.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-OSSR, USN
Docket No. ND05-01048

Applicant’s Request
The application for discharge review was received on 20050606. 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 20060508. 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 General (Under 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:

“To insure a good solid job I had no real wrong punishments whatsoever.”
Applicant’s Remarks: (Taken from the DD Form 293) I’m a good solid person with no history of any bad charges or conducts, no felonies at all.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Only the service record was reviewed. The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20010213 – 20020321               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20020322             Date of Discharge: 20030612

 Length of Service (years, months, days):

         Active: 01 03 21
         Inactive: None

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

 Age at Entry: 19

Years Contracted: 4 (12 month extension)

 Education Level: 12                                 AFQT: 50

 Highest Rate: OSSA

 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): National Defense Service Medal, Armed Forces Expeditionary Medal, Sea Service Deployment.
* Not Available


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

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

 Chronological Listing of Significant Service Events :

020103:  NJP for violation of UCMJ, Article 86: Absence without leave.
 Violation of UCMJ, Article 91: Disrespect toward Petty Officer.
Violation of UCMJ, Article 117: Provoking speeches or gestures.
         Award: Forfeiture of ½ pay per month for 2 months (1 month suspended for 6 months), reduction to E-1. No indication of appeal in the record.
020216:  Retention Warning: Advised of deficiency (Violation of the UCMJ, Article 86-Absence without leave; Article 91-Disrespect toward a Petty Officer; Article 117-Provoking speeches or gestures), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
020419:  Retention Warning: Advised of deficiency (Violation of the UCMJ, Article 86-Absence without leave), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
020419:  NJP for violation of UCMJ, Article 86: Absence without leave.
         Award: Restriction and extra duty for 15 days. No indication of appeal in the record.

020419:  Forfeiture of pay and reduction in pay grade awarded at NJP on 020103 vacated due to continued misconduct.

 030612:  DD Form 214: Applicant discharged general under honorable conditions by reason of misconduct commission of a serious offense, per MILPERSMAN 1910-140.

Service Record did not contain the Administrative Discharge package.
Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20030612 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of general (under 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 (C and D). The Board presumed regularity in the conduct of governmental affairs (E).

 The Applicant contends that he did not commit a serious offense. On 020103, the Applicant was punished at nonjudicial punishment for violation of UCMJ Article 91. A violation of Article 91 is considered a serious offense. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, that the discharge was not proper and equitable. The Board presumed the Applicant committed further misconduct after his nonjudicial punishment and retention warning on 020419. The Board presumed the Applicant was notified of the intended recommendation for discharge by reason of misconduct due to commission of a serious offense, was advised of his rights and provided the opportunity to consult with counsel, and elected or waived each right. The Board presumed that the Commanding Officer, USS Thatch, recommended discharge with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense. Relief denied.

The Applicant alleges an inequity in that he is “a good solid person with no history of any bad charges or conducts, no felonies at all.” 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. A general 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 2 retention warnings, and 2 nonjudicial punishment proceedings for violations of Articles 86 (2 specs), 91, and 117 of the UCMJ. The Board presumed the Applicant committed further misconduct after his nonjudicial punishment on 020419. 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 requests an upgrade so he can get “a good solid job.” T he Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. Relief is not warranted.

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 additional evidence related to this 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. 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 91, disrespect to a Petty Officer.
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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