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NAVY | DRB | 2005_Navy | ND0501324
Original file (ND0501324.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-YNSR, USN
Docket No. ND05-01324

Applicant’s Request
The application for discharge review was received on 20050810. 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 designated the American Legion as the representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060406. 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:

“Reprisal. I reported the Lt., and 1, st, 2 nd , class petty officers for bad treatment. Upon my reporting them, I was attached byway of reprisal. I went U.A.”

 Applicant’s Remarks: (Taken from the DD Form 293.)

“I was 33 when I en-listed in the U.S. Navy. I was promised that if I would have competed Y.N. A School, I would have the opportunity to attend school and continue my pursuit in law. However, the command I was assigned to would not allow me the follow my dream. After competing Y.N. School, I felt like the Navy would give me the chance. I was assigned to mop floors, work in the G, dunk, and other undesirable task to punish me. I reported my LT to the C/O. He the retaliated against me and I could no longer take the abuse and went U.A.”

 Representative submitted no issues.
Documentation
In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 1 and 4) (2)
Letter from the Applicant, dtd July 10, 2005 (4 pages) (2)
Letter to Applicant from Western Illinois University, dtd August 10, 2005
Certification from Western Illinois University
Letter from Applicant, dtd December 28, 2005 (3 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19970306 - 19970915      COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 19970916             Date of Discharge: 19980521

 Length of Service (years, months, days):

         Active: 00 08 05 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence:    20 days
         Confinement:                       None

 Age at Entry: 33

 Years Contracted: 4

 Education Level: 14                                 AFQT: NA*

 Highest Rate: YNSR

 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): None
* Not Available


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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 1910-142.
Chronological Listing of Significant Service Events :

970306:  Pre-service waiver for two non-minor misdemeanors battery and rape/kidnapping granted.

970306:  Pre-service waiver for two dependents granted.

 980415:  Applicant to unauthorized absence on 980415. [Extracted from DD Form 214, Block 29.]
980505:  Applicant from unauthorized absence on 980505 (20 days). [Extracted from DD Form 214, Block 29.]
980511:  Applicant found physical qualified for separation.

 980521:  DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct due to commission of a serious offense, authority: MILPERSMAN, Article 1910-142.

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 19980521 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 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).

In the absence of a complete discharge package or service record, the Board presumes the Applicant committed a serious offense, was properly notified and processed by reason of misconduct due to the commission of a serious offense and that an under other than honorable conditions discharge was an appropriate characterization of his service. The Applicant bears the burden of overcoming this presumption of regularity through the presentation of substantial and credible evidence to support his issue. The Applicant has submitted no documentation or other evidence to rebut the above presumption that he committed misconduct due to the commission of a serious offense or that his service merited an honorable discharge. In the absence of evidence to the contrary, the Board presumes that the Applicant’s discharge was both proper and equitable. Relief denied.

 The Applicant implies that his misconduct was the result of reprisals on the part of his chain of command for reporting their maltreatment. 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 he was the victim of reprisals or bad treatment. 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), 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. In the absence of a complete discharge package, the NDRB presumed the Applicant committed an offense that 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.
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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