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NAVY | DRB | 2006_Navy | ND0600076
Original file (ND0600076.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-ATAR, USN
Docket No. ND06-00076

Applicant’s Request
The application for discharge review was received on 20051017. 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 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 feel I was punished unfairly by being discharged. I did and knew my job better than most others. I served three years and did many deployments at sea (Westpac & workups). The Navy taught me a lot and I wanted to stay. I would do it all over again if given the chance. In fact, even after being discharged, the first thing I did was inquired about being on reserves. The one thing the Navy did not teach at the time was managing finances. And for a person like me, joining right out of High School, it could have prevented most of my problems. I learned to take care of myself and to live on my own but that should include financially. I began to have money problems because I was overspending and not taking care of my Bills. I was also married and my wife separated from me while on Westpac, Leaving Bills, and utilities 7 creditors to pile up. I Borrowed money from a shipmate and was even having problems paying it back. I returned from cruise in December of ’98 and was sent to Captain’s Mast around February of ‘99 for not taking care of finances & failing to pay back my shipmate. It was my first Captains mast and got restriction, busted down, docked pay and discharged. I was never offered Help or counseling.”

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

“From item 9: I would prefer not to have to appear since it is a big expense. However I feel so strongly about this that if the board feels it is necessary, I will appear Before the board in Washington at no expense to the government. If it is necessary, please change my answer to the question.”

 Documentation
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)     19951013 - 19960401      COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19960402             Date of Discharge: 19990309

 Length of Service (years, months, days):

         Active: 02 11 08
         Inactive: None

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

 Age at Entry: 18

 Years Contracted: 4

 Education Level: 12                                 AFQT: 57

 Highest Rate: ATAA

 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): Armed Forces Expeditionary Medal, Sea Service Deployment Ribbon
* Not Available


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

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

990204:  NJP for violation of UCMJ, Article 134 (71 debt, dishonorably failing to pay).
         Award: Forfeiture of $480 per month for 2 months (suspended for 6 months), restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
990208:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general by reason of misconduct due to commission of a serious offense as evidenced by your Commanding Officer’s nonjudicial punishment of 4 February 1999.
990309:  DD Form 214: Applicant discharged with a general (under honorable conditions) character of service by reason of misconduct due to commission of a serious offense; authority: MILPERSMAN, Article 1910-142.

990310:  NAS Lemoore, CA, informed COMNAVPERSCOM that the Applicant was discharged with a general (under honorable conditions) character of service by reason of misconduct by reason of commission of a serious offense. [Extracted from CNPC message dated 990319.]


Service Record contains a partial Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19990309 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 invoked the presumption of regularity. Specifically, the Board presumed that the Applicant was afforded all rights which he elected at notification.

The Applicant contends that he knew his job “better than most others... and did many deployments.” 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. The Applicant’s service was marred by nonjudicial punishment proceedings for violation(s) of Article 134 of the UCMJ for dishonorably failing to pay debt. The Applicant’s violation of Article 134 is considered the commission of a serious offense. 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 his discharge was inequitable because the Navy did not teach him how to handle his finances and that his marital separation caused some his financial difficulties. The Applicant further contends that he was never offered help or counseling. While he may feel that his marital situation or lack of financial training was the underlying cause of his misconduct, the evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. The Applicant’s contention, that he was not offered help or counseling, do not refute the presumption of regularity in this case. Relief denied.

The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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 Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided any post-service documentation for the Board to consider. 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. 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 134, dishonorably failing to pay debt.

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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