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NAVY | DRB | 2005_Navy | ND0501178
Original file (ND0501178.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-IC3, USN
Docket No. ND05-01178

Applicant’s Request
The application for discharge review was received on 20050708. 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 20060608. 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:

“I was arrested as a civilian. I had asked for early out. I was not prosecuted by the Navy & feel I should have a honorable discharge. I served the US Navy with honor & therefore should have an honorable discharge. I did not have any misconduct while in duty, I served the USN & my country with pride & honor.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19980930 – 19981007               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19981008             Date of Discharge: 20030908

 Length of Service (years, months, days):

         Active: 04 11 01
         Inactive: None

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

 Age at Entry: 21

 Years Contracted: 4 (15 month extension)

 Education Level: 12                                 AFQT: 63

 Highest Rate: IC2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.2 (5)     Behavior: 3.2 (5)                 OTA: 3 .71

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Meritorious Unit Commendation, First Conduct Medal for period ending 20011007, Armed Forces Expeditionary Medal, National Defense Service Medal, Sea Service Deployment Ribbon (2), Enlisted Surface Warfare Specialist Insignia, Enlisted Aviation Warfare Specialist Insignia.


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 :

030311:  NJP for violation of UCMJ, Article 86: Unauthorized absence.
 Violation of UCMJ, Article 107: False official statement.
          Award: Forfeiture of $1400 pay per month for 2 months, restriction and extra duty for 30 days, reduction to E-4. No indication of appeal in the record.

 030908:  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.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20030908 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 bears the burden of establishing his issues through the presentation of substantial and credible evidence. In the absence of a complete discharge package, the Board presumed regularity of governmental affairs. 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 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 John F. Kennedy, recommended discharge with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense. Relief denied.

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 nonjudicial punishment proceedings for violations of Articles 86 and 107 of the UCMJ. 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 alleges impropriety in that he had a civilian arrest and was not prosecuted by the Navy. Commission of a serious offense does not require adjudication by nonjudicial, judicial proceedings or civilian conviction; however, the offense must be substantiated by a preponderance of evidence. The statement provided by the Applicant does not refute the presumption of regularity in this case. Additionally, the Applicant was punished at nonjudicial punishment proceedings for violation of UCMJ Article 107, a serious offense. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. The Board presumed that the Applicant was provided the opportunity to present his case before an administrative board, but waived that right, thus accepting the discharge recommended in the letter of notification. 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 107, false official statement.
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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