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NAVY | DRB | 2005_Navy | ND0501448
Original file (ND0501448.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-MM2, USN
Docket No. ND05-01448

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 designated Veterans of the Vietnam War as the representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060614. 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 and representative’s issues, as stated on the application and/or attached document/letter:

 “I request my discharge be upgraded to honorable due to a mistake I made by trying not to let a paperwork be late.

 To the Members of the Board and To Whom It May Concern:

I wire this letter to bring issues to you, that you might change the Characterization of my discharge from military service.
Since Discharge I have: attended Collage at the University of Connecticut where I earned a 4.0 during my first semester of classes. I worked at several part-time jobs through a Temp Agency. Each Manager praised my work and dependability. Some wanted to find a more permanent position for me. I traveled home to help my parents with home improvements towards the sale of their house. And I am currently working for Sears in the Auto Center where I have been a valuable asset to the team of technicians there.
During my enlistment I was a happy person, not because I enjoyed the events that unfolded around me but because I could not have survived if I broke down emotionally. I was never a quick study, and the nuclear field was no exception. I would receive constant verbal abuse from my fellow shipmates. (Including but not limited to: your stupid, Hey retard how come you can’t learn this.) I would never tell my superiors about this for fear of reprisal. While I was enlisted in the U.S. Navy I have done something that I regret. When I initialed a document for the reviewing officer to prevent the repercussions of a late report, I regret that I was not able to ask for help or find the right person in the military to help me.
Respectfully
M_ C_ S_(Applicant) ”


Documentation
In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Character Reference ltr frm J_ E_, Manager, Sears Auto Center, undtd
Character Reference ltr from T_ A_, Associate Minister, Groton/New London International Church Christ, dtd December 17, 2004
Letter from Applicant’s representative, dtd February 3, 2006
Two screen prints from Strength Loss data base.
Travel certificate, Separation without orders, dtd January 8, 2004
Evaluation Report and Counseling Record, dtd October 6, 2003
Evaluation Report and Counseling Record, dtd April 28, 2003
Evaluation Report and Counseling Record, dtd December 13, 2001

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19970630 - 19980528      COG
          Active: USN      19980529 - 20001027      HON
Period of Service Under Review :
Date of Enlistment: 20001028             Date of Discharge: 20040122

 Length of Service (years, months, days):

         Active: 03 02 25
         Inactive: None

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

 Age at Entry: 21

 Years Contracted: 6

 Education Level: 12                                 AFQT: 86

 Highest Rate: MM2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.0 (2)                       Behavior: 2.0 (2)                 OTA: 1. 92

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): First Good Conduct Medal for period ending 01May28, Navy Expeditionary Medal, National Defense Service Medal, Armed Forces Expeditionary Medal, Sea Service Deployment Ribbon


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 :

001028:  Reenlisted this date for a term of 6 years.
011130:  NJP. No further information found in service record. [Extracted from NAVPERS 1070/604.] Dereliction of duty, in that he falsified chemistry records. Awarded reduction in rate and forfeiture of pay. [Extracted from Performance evaluation provided by Applicant, dated 011213.]

030626:  NJP. No further information found in service record. [Extracted from NAVPERS 1070/604 and Evaluation Report and Counseling Record, Block 43. Comments, dated 031006.]

040122:  DD Form 214: Applicant discharged with a general (under 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 20040122 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. There is no evidence in the record, nor has the Applicant produced any evidence, that the discharge was not proper and equitable. The service record did not contain a discharge package. 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 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 two nonjudicial punishment proceedings for violations of Articles of the UCMJ. The first NJP on 011130 was for dereliction of duty, in that he falsified chemistry records. The Applicant was awarded reduction in rate and forfeiture of pay. Violation of UCMJ Article 92, willful dereliction in performance of duties, is considered a serious offense. The service record contains no information about the charges for the Applicant’s second NJP. 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 implies that the Board’s evaluation of his misconduct should consider that he “was never a quick study” and struggled in the nuclear field as a mitigating factor. He alleges that he received “constant verbal abuse from my fellow shipmates” but did not report this abuse “for fear of reprisal.” 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, to support the contention that his misconduct should be mitigated because he struggled academically and was verbally abused. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. However, even if the Applicant could show he struggled academically, this would neither amount to a justification nor to a defense for the Applicant’s own misconduct. Relief denied.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered. The Applicant provided one letter of recommendation from his employer and one letter for recommendation from his pastor as documentation of post-service accomplishments. The Applicant's efforts need to be more encompassing than those provided. For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities. At this time, the Applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in the characterization of discharge. Therefore, 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 92 – willful dereliction in the performance of duties.
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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