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NAVY | DRB | 2006_Navy | ND0600186
Original file (ND0600186.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-AOAR, USN
Docket No. ND06-00186

Applicant’s Request
The application for discharge review was received on 20051109. 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 20060912. 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 issues, as stated on the attached document/letter:

“Dear Sir or Madam:
I am writing to you this 19 th day of October to request that my discharge be changed to honorable and that my RE code be waived so that I can continued to serve in the United States Armed Forces. On September 17, 2003, I was adjudged to summary court martial on the charges of destruction of personnel property and theft. I pled guilty to all of the charges and was sentenced to 30 days confinement, reduction in rank from E-4 to E-1, and 766.00 forfeiture in pay for one month. Upon completion of this, I went to the Administrative Separation Board where they found that I shouldn’t get a dishonorable discharge because of the circumstances that led to the events and due to the fact that this was a first offense, but a general under honorable conditions discharge. During my full 3 years of service to the Navy, I received 4.0 evaluations, was never in trouble, and received good conduct and divisional accommodation awards. My family and I were recently affected by Hurricane Katrina in New Orleans. We lost everything that we owned including our house and car. We are currently living with family members along with 13 other people. Under the circumstances, I currently would like another chance at serving my country so that I can provide for my family and I in this time of need. I am asking for a second chance to serve in the military. I thank you or your time and consideration.

 Thank You, (signed) W. T. C_ (Applicant) ”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Letter from Applicant, dtd May 7, 2006
Verification of First Offense Pardon, dtd May 7, 1998
Court Order Motion, dtd August 17, 2005
Service Related Documents (19 pgs)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20000331 – 20000802               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20000803             Date of Discharge: 20040114

 Length of Service (years, months, days):

         Active: 03 05 12 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: none
         Confinement:              30 days

Age at Entry: 24

 Years Contracted: 4 (12 month extension)

Education Level: 10                                 AFQT: 38

 Highest Rate: AOAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.2 (4)              Behavior: 2.2 (4)                 OTA: 3 .04

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Good Conduct Medal, National Defense Service Medal, Meritorious Unit Commendation (2), Armed Forces Expeditionary Medal Medal (2), Navy “E” Ribbon (2), 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 :

030917:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 95:
         Specification: Resisting arrest. Plea : Not Guilty. Findings : Not guilty.
         Charge II: violation of the UCMJ, Article 109:
         Specification: Damaging other than government property on 16 June 2003. Plea : Guilty. Findings : Guilty.
 Charge III: violation of the UCMJ, Article 121:
         Specification: Wrongfully steal an amplifier on 16 June 2003. Plea : Guilty. Findings : Guilty.
          Sentence: Confinement for 30 days, forfeiture of $766.00 pay per month for one month, reduced to E-1.
          CA action 030917: Sentence approved as adjudged. Clemency matters were submitted on 18 September 2003. I have reviewed the submitted clemency matters and considered the matters presented by the accused when he appeared before me at Request Mast on 3 October 2003 [Extracted from case file].

031009:  CNPC Letter which determined that member failed to disclose criminal conduct and adverse financial information on the SF-86 completed when enlisting in the Navy. CNPC directed the Command to process for fraudulent enlistment.

040107:  CNPC directed C.O. USS GEORGE WASHINGTON to investigate the possibility member may have fraudulently enlisted. CNPC also requested initiate ADSEP processing or request waiver of ADSEP processing from CNPC.

040114:  DD Form 214: Applicant discharged general (under honorable conditions) by reason of misconduct commission of a serious offense, authority MILPERSMAN 1910-142.

Service Record did not contain the Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20040114 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 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 states “I shouldn’t get a dishonorable discharge because of the circumstances that led to the events and due to the fact that this was a first offense”. 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 one Summary Court-Martial for violations of Article(s) 95 (Resisting apprehension), 109 (Damage of property other than military property) and 121 (Larceny: wrongfully stealing an amplifier on 16 June 2003) of the UCMJ. For the edification of the Applicant violation of Article(s) 95, 109 and 121 are considered commission of a serious offense (COSO). 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 states “I request that my discharge be changed to honorable and that my RE code be waived so that I can continue to serve in the United States Armed Forces”. Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

During the documents review it was discovered the administrative separation package was missing. 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 was properly notified of his Commanding Officer’s intent to administratively process the Applicant for separation, that the Applicant was afforded all rights which he elected at notification and that the Applicant’s discharge was directed by proper authority.

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, Articles 95 (resisting apprehension), 109 (Damage of property other than Military property) and 121 (Larceny).

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 Governmental 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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