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NAVY | DRB | 2006_Navy | ND0600060
Original file (ND0600060.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-LISN, USN
Docket No. ND06-00060

Applicant’s Request
The application for discharge review was received on 20051006. 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 20060721. After a thorough review of the available 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 and reason for 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 am requesting an upgrade so I may attend a career school. I am a more mature and responsible adult than I was then. I am married for 5 years and have a four-year-old son and two stepdaughters, now 13 and 18. Being a wife and mother changed my life. I am now a role model for my children. I am requesting an upgrade so I may provide a secure future for my children and to continue to better myself as a person. Thank you for your consideration.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s letter, dtd September 29, 2005 (3 pages)
Letter from Lt H_ K. H_, JAGC, USN, Defense Counsel, Naval Legal Service Office, dtd October 30, 1996 (2 pages)
Character witness questionnaire from C_ E_, LIC(SW), dtd September 23, 1996
Character witness questionnaire from C_ M. C_, LI1(SW), dtd October 7, 1996
Extra duty work sheet, dtd August 27, 1996
Document entitled “outline”
Document entitled “Navy story,” dtd November 30, 2005 (3 pages)
Document entitled “story,” dtd November 30, 2005 (5 pages)
Request for criminal record check, with report dtd November 18, 2005 (2 pages)
Document entitled “employment history,” undated (2 pages)
Character reference ltr from B_ E_, Deli Manager, dtd January 11, 2006
Document entitled “History of my life as a wife stepmom and mom” (36 pictures)
Character Reference ltr from D_ L. L_, Applicant’s husband, dtd January 22, 2006 and January 16, 2006 (4 pages)
Character Reference ltr from W_ J. S_, dtd January 16, 2006
Character Reference ltr from M_ M. (P_) B_, dtd October 18, 2005
Character Reference ltr from C_ D. P_, dtd November 22, 2005
Character Reference ltr from M_ A_, dtd November 19, 2005
Character Reference ltr from F_ X. A_, dtd November 5, 2005
Character Reference ltr from Applicant’s neighbor, P_ S_, dtd November 2, 2005
Character Reference ltr from Applicant’s neighbor, F_ P_, dtd October 24, 2005
Maryland criminal record check, dtd November 2, 2005
State criminal record request (Fingerprint card), with report dtd October 31, 2005
Applicant’s certificate of baptism, dtd June 9, 2002
Applicant’s certificate of marriage, issued May 19, 2001
Adopt-A-Highway group agreement, dtd November 29, 2005 (3 pages)
Notice of January 2006 C.O.P. meeting
List of references
Allstate Career School enrollment agreement, dtd September 26, 2005 (2 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19930212 - 19930216      COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 19930217             Date of Discharge: 19961107

 Length of Service (years, months, days):

         Active: 03 08 21
         Inactive: None

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

 Age at Entry: 27

 Years Contracted: 4 (21 month extension)

 Education Level: 12                                 AFQT: 48

 Highest Rate: LI3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.8 (4)              Behavior: 3.8 (4)                 OTA: 3.85 4.0 evals
 Performance: 4.0 (1)              Behavior: 4.0 (1)                 OTA: 3.57 5.0 eval
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal, Navy “E” Ribbon, Meritorious Unit Commendation


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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MILPERSMAN, Article 3630605.
Chronological Listing of Significant Service Events :

930212:  Enlistment waiver granted for non-minor misdemeanor.
930226:  Applicant briefed on Navy's policy of drug and alcohol abuse.
930903:  NJP for violation of UCMJ, Article 86: UA fm unit fm 0530 to 0718, 26Aug93.
 Violation of UCMJ, Article 91: 4 specifications of disrespect to a petty officer btwn 22Jul93 and 25Aug93.
Violation of UCMJ, Article 92: Disobedience of a petty officer on 22Jul93 and 25Aug93.
Violation of UCMJ, Article 134: Drunk and disorderly on 25Aug93 Incapacitated for performance of duty on 25Aug93.
         Award: Reduction to E-1. No indication of appeal in the record.

930903:  Retention Warning: Advised of deficiency (Disobedience and disrespect toward senior personnel and disorderly conduct.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
960729:  NJP for violation of UCMJ, Article 89: Disrespectful in language toward a commissioned officer.
 Violation of UCMJ, Article 117 (2 specs): Provoking speeches.
Violation of UCMJ, Article 134 (2 specs): Drunk and disorderly and incapacitated for duty.
         Award: Forfeiture of $556 per month for 2 months, restriction and extra duty for 45 days, reduction to E-3. Appealed 960802. Appeal denied 960829.
960823:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by Commanding Officer’s nonjudicial punishment on 29 July 1996 and 3 September 1993, by reason of misconduct due to a pattern of misconduct as evidenced by two nonjudicial punishments in current enlistment, and by reason of alcohol abuse rehabilitation failure as evidenced by all alcohol related incidents in your career since attending Level III treatment.
960827:  Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.
961028:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant did fail alcohol abuse rehabilitation and Applicant had committed misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct, that such misconduct warranted separation, and recommended discharge with a characterization of general (under honorable conditions).
961113:  Applicant found qualified for separation.

961107:  Applicant discharged under honorable conditions (general) by reason of misconduct. Separation Authority: MILPERSMAN 3630600. Separation Code: GKQ.

961115:  Commanding Officer, Transient Personnel Unit, Norfolk, VA recommended to Chief of Naval Personnel, that the Applicant be discharged with a general (under honorable conditions) by reason of misconduct due to pattern of misconduct, misconduct due to commission of a serious offense, and by reason of alcohol abuse rehabilitation failure. Commanding Officer’s comments: “Concur with the findings and recommendation of the Board.”

Service Record contains a partial Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19961107 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 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. In the Applicant’s case, in the absence of a complete discharge package and without credible and substantial evidence to refute the Board’s presumption, the Board evoked the presumption of regularity. Specifically, the Board presumed that the Applicant’s discharge was directed by proper authority.

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. An under other than honorable conditions or 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. The Applicant’s service was marred by a retention warning and two nonjudicial punishment proceedings for violations of Articles 86, 89, 91, 92, 117 and 134 of the UCMJ. Violations of Articles 89, 91 and 92 of the UCMJ are considered serious offenses. The Applicant’s conduct is a violation of her waivered enlistment. 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 her discharge is inequitable because she is more mature now. While the Applicant may feel that her immaturity was the underlying cause of her misconduct, the record clearly reflects her willful misconduct and demonstrated she was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for her conduct or that she should not be held accountable for her actions. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. Relief denied.

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 civilian life, subsequent to leaving the service. The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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. After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct which precipitated the discharge. 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 14, effective
03 Oct 96 until 971212, Article 3630605, SEPARATION OF ENLISTED PERSONNEL 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 89, disrespect toward a superior commissioned officer, Article 91, insubordinate conduct or Article 92, failure to obey an order/regulation.

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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