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NAVY | DRB | 2006_Navy | ND0600193
Original file (ND0600193.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-NC2, USNR
Docket No. ND06-00193

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 20060926 . 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 and/or attached document /letter:
“ Dear Sir and or Ma’am I am writing you today for a good reason and that is I have served honorably for over 14 years in the Navy with One laps in judgment which was a big one. I Authorized subordinates to alter paperwork. I make no excuses except this has been a practice that has been going on since I have become a Naval Reserve recruiter in 1996 , In 2003 I let some things slide in my office and that is why I’m here writing you today , at any other of my positions since then the investigation found no inaccuracies. I have had a wonderful career serving my country honorably with no problems at all, up to this point , ho wever my commanding officer was not very fond of me and used every measure in her arsenal to kick me out , with no other NJP’s or even counseling in my record. On November 8th 2004 I signed a waiver to an admin board and it stated I would not get anything less then a general discharge under honorable conditions. on November 19 th my command approached me an d made me sign a new NAVPERS1910 /32 over again Saying that I would receive a other than honorable discharge . And if I did not sign this they would press more charges against me. So with my lawyer telling me to sign it, I did. I made one mistake in 15 years in the Navy and I’m out, they made an error on paperwork and, it’s no big deal. Please I ask you with the utmost of respect to review my record carefully and take into account that my career is over and I only had 5 more years to go to retirement, isn’t that enough punishment? This 11 months since I have been out has been very stressful and difficult to deal with. I ask please overturn my discharge and upgrade it or reinstate me to full duty. Thank you for your consideration.

Very respectfully,

 [signed]
R _ P _(Applicant) ”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant , was considered:
Eight pages from Applicant ’s service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19890130 - 19890206       COG
          Active: USN      19890207 - 19920705       HON
                   USN      19920706 - 19950105      HON
                  USNR (DEP)       19950106 - 19951018      ELS
                   USNR     1995101 9 – 19960520      HON
                   USN R      19960521 – 19990413      HON
                  USN R      19990414 – 20021017      HON
Period of Service Under Review :
Date of Enlistment: 20021018              Date of Discharge: 20041209

Length of Service (years, months, days):

          Active: 0 2 0 1 22
         Inactive: None

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

Age at Entry: 32

Years Contracted: 3

Education Level: 12                                 AFQT: 53

Highest Rate: NC 1

Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4 .0 ( 1 )                        Behavior: 3 .0 ( 1 )         OTA: 4.14

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal (2) , Navy & Marine Corps Good Conduct Medal(4), Navy Recruiting Service Ribbon, Navy & Marine Corps Achievement Medal(5), Sea Service Deployment Ribbon , Southwest Asia Service Medal, Armed Forces Expeditionary Medal , Overseas Service Ribbon, Navy Pistol Ribbon, Navy Rifleman,


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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 1910-142 (formerly 3630605).

 Chronological Listing of Significant Service Events :

021018 :  Reenlisted this date for a term of 3 years.
041109 :  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 81: Conspiracy. Plea : Guilty. Findings : Guilty.
         Charge II: violation of the UCMJ, Article 84 (2 specs): Effect the enlistment of PC3 R_ and AE2 H_. Plea : Guilty. Findings : Guilty.
          Charge III: violation of the UCMJ, Article 92 (4 specs): Failure to ob ey a general regulation. Plea : Guilty. Findings : Guilty and failure to follow the proper procedures for attaining Applicant s into the Naval Reserve. Plea : Guilty. Findings : Guilty.
         Sentence: Restriction for 30 days, reduced to E- 5 .
          CA action 04111 6 : Sentence approved and ordered executed.
         
041111:  Applicant ’s request for clemency to the Convening Authority submitted through the Applicant ’s Defense Counsel.
041119 :  Applicant notified of intended recommendation for discharge with the least favorable characterization of service under other than honorable by reason of misconduct-commission of a serious offense.

041119 :  Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation and submit a statement.

041122:  Applicant ’s statement.

 041124:  Memorandum for the Record from the Commanding Officer. Indicates that the Applicant was facing court martial charges. An agreement was made between the prosecution and defense that all ow ed the Applicant to plead guilty at a Summary Court-Martial, waive his administrative discharge board , and leave the service with an Other Than Honorable Discharge in exchange for his assistance in prosecuting senior enlisted personnel that taught him to change medical documentation for perspective recuits. It also memoralizes that an administrative error occurred in the Applicant’s processing. The Applicant was erroneously served with and signed a notification letter indic ating that the least favorable characterization was General (Under Honorable condit i ons). The Applicant was notified a second time ; and a fter consulting with counsel , the Applicant signed the second notification indicating that the least favorable characterization of service was Under Other Than Honorable Conditions.

041124 :  Commanding Officer, Naval Reserve Recruiting Area Central , forwarded Applicant’s separation package with least favorable characterization as under other than honorable conditions by reason of misconduct – commission of a serious offense . Commanding Officer’s comments: “ Summary Court-Martial held on 09 November 2004. Member adjudged 30 days restriction and reduction to E-5. Sentence approved and executed on 17 November 2004. The Administrative Separation Processing Notice-Administrative Board Procedures was done and member waived the administrative board. The reason for Administrative Separation Processing was Separation by Reason of Misconduct-Commission of a Serious Offense. Characterization of Service: Other Than Honorable, RE-4. ”
041201 :  Commander, Navy Recruiting Command , directed the Applicant 's discharge under other than honorable conditions by reason of misconduct – commission of a serious offense.

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 20041209 by reason of misconduct due to commission of a serious offense (A and B) 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 (C and D).

In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. Specifically, Applicant alleged that after acknowledging that he would receive a General (Under Honorable Conditions) discharge, his command “made” him sign another acknowledgement indicating the least favorable characterization of service as Under Other Than Honorable Conditions. The command acknowledged that administrative error was made in providing the Applicant with the wrong notification but subsequently served him with a second corrected notification. The Applicant also alleges that his Commanding Officer was overzealous in prosecuting his case resulting in his other than honorable discharge. The record, however, does not substantiate his allegation of overzealous conduct. In fact, the record contains no evidence of any wrongdoing by the Applicant’s Commanding Officer or anyone else for that matter in the discharge process. Not only is there no evidence in the record, but the Applicant has produced no evidence, to support his contention. The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. The Applicant’s statements alone do not overcome the government’s presumption of regularity. 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. 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 25 April 2005, 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 s 84 (effecting unlawful enlistment), 92 (failure to obey a general order).

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 .

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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