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NAVY | DRB | 2005_Navy | ND0501439
Original file (ND0501439.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-ET3, USN
Docket No. ND05-01439

Applicant’s Request
The application for discharge review was received on 20050829. 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 20060512. 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 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 went to civil court and plead no contest to the civil court not knowing that it was the same as guilty. I just wanted the fasts way out of court cause I had things to do I knew I was innocent. I found out my C/O was going to make an example of me and I found that unfair especially since I just passed my E-5 test. So I went above his head and went to base legal but when my C/O said he was going to see to it I spend time in the Brige I signed my discharge papers my C/O was going up for admiral and was mad about me going to navy legal instead of using my chain of command I felt their was no need to use my chain of command when they already determined me to be guilty. Never once had I failed urinalysis plus I took 3 after court don’t you think if I know I am getting kicked out I would be smoking weed, people get caught with drugs all the time and they get a chance to go to rehab but me I don’t even do drugs I just get discharged.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Only the service and medical records were 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)     19951003 – 19951226               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19951227             Date of Discharge: 19980710

 Length of Service (years, months, days):

         Active: 02 06 14
         Inactive: None

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

 Age at Entry: 19

Years Contracted: 4 (24 month extension)

 Education Level: 12                                 AFQT: 80

 Highest Rate: ET3

 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 Service Medal, Sea Service Deployment Ribbon.
* 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 :

980710:  DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct commission of a serious offense, per MILPERSMAN 3630600.


Service Record did not contain the Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19980710 by reason of misconduct due to commission of a serious offense (A) with a service characterization of under other than honorable conditions. 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 (B and C). The Board presumed regularity in the conduct of governmental affairs (D).
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, that the discharge was not proper and equitable. The Board presumed the Applicant was notified of intended recommendation for discharge by reason of misconduct due to commission of a serious offense, advised of his rights and provided the opportunity to consult with counsel, and elected or waive d each right. The Board presumed that the Commanding Officer, USS Hue City , recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense. Relief denied.
The Applicant alleges impropriety in that his Commanding Officer “was going to make an example of” him because he went over the Commanding Officer’s head by going to base legal. The Applicant states he waived his right to an Administrative Discharge Board because the “CO said he was going to see to it I spent time in the brig.” The record, however, contains no evidence of any wrongdoing by the Applicant’s Commanding Officer, or anyone else, in the discharge process. In order to overcome the presumption of regularity, it is incumbent upon the Applicant to provide substantive corroborative evidence in the support of his claims. The Applicant has not provided any evidence in support of his claims. Relief denied.

The Applicant alleges inequity in that he was innocent but “plead no contest to the civil court not knowing that it was the same as guilty.” 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 and he provided no evidence that he did not understand the implications of pleading no contest. The Applicant states he 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. The Navy had no control over the process where the Applicant pled no contest in civil court. Additionally, a finding of guilt by a civil court is not required to support administrative separation due to commission of a serious offense. Even after his plea in civil court, the Applicant had the opportunity to request an Administrative Board to correct the record but he waived that right. 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), 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. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

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

 D. 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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