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NAVY | DRB | 2006_Navy | ND0600206
Original file (ND0600206.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-SA, USN
Docket No. ND06-00206

Applicant’s Request
The application for discharge review was received on 20051114 . 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 2006092 6 . 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 THAT THE PUNISHMENT WAS UNJUST . I WOULD LIKE TO REENLIST AND FINISH MY NAVY CAREER .”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 ( M ember 4)
Applicant’s DD Form 214 ( M ember 1)
 Board for Barbers and Cosmetology Authorization - to - Test Letter from Professional Credential Services dtd June 10, 2005
Board for Barbers and Cosmetology Admission Notice from Professional Credential Services , undated
Barbers License, from Department of Professional and Occupational Regulation , Commonwealth of Virginia, expires August 31, 2007

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20030429 - 20030810       COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 20030811              Date of Discharge: 20050325

Length of Service (years, months, days):

          Active: 0 1 0 7 15
         Inactive: None

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

Age at Entry: 21

Years Contracted: 4

Education Level: 12                                 AFQT: 32

Highest Rate: SN

Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3 .0 ( 2 )              Behavior: 3 . 5 ( 2 )                  OTA: 3 .0 9

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal, Global War on Terrorism, Expeditionary Medal, Armed Forces Expeditionary Medal, Battle “E” Ribbon, Global War on Terrorism Service Medal .


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 :

040126:  Enlisted Designator (ESWS) revoked.

040427:  NJP for violation of UCMJ, Article 92: Failure to obey order or regulation.
 Award: Oral reprimand , forfeiture of ½ pay per month for 2 months (suspended), reduction to next inferior paygrade (suspended). No indication of appeal in the record.
050126:  NJP for violations of UCMJ :
 Charge I : V iolation of UCMJ, Article 91: Insubordinate Conduct toward a non - commissioned officer or petty officer , in that SN C_, D_ D., USN (Applicant ) , on active duty, onboard USS McFaul (DDG 74) while moored in Yorktown Naval Weapon Station, VA, on or about 1400, 050105, was disrespectful in language and deportment toward BM2 M_, a 2 nd class petty officer, then know n by SN C_ (Applicant) to be a petty officer, who was then in the execution of his office, by saying to him, “Out of all these people out here, you had to pick her,” “He’s a n a_,” and “You don’t have to talk to me like that, I am a man just like you,” or words to that effect.
Charge II : Violation of UCMJ, Article 1 34 : Communicating a threat, in that SN C_, D_ D., (Applicant) USN, on active duty, onboard USS McFaul (DDG 74) while moored in Yorktown Naval Weapon Station, VA, on or about 1400, 050105, wrongfully communicate to OSSN M_ a threat by saying to him, “ I’ll holla at you in the berthing or out in town, ” “ I’ll throw you off the ship,” and “I’ll lay you down right here on the deck,” or words to that effect.
Charge III : Violation of UCMJ, Article 1 17 : In that SN C_, D_ D., (Applicant) USN, on active duty, onboard USS McFaul (DDG 74), while moored in Yorktown Naval Weapon Station, VA, on or about 1400, 050105, wrongfully use provoking and reproachful words to wit; “m_ f_, ” “b_,” and “OS f _ ,” or words to that effect to OSSN M_ .
          Award: Forfeiture of $ 717. 00 pay per month for 2 month s , restriction to USS MCFAUL for 45 days, extra duty for 45 days, reduction to E- 2, ESWS QUAL pulled . No indication of appeal in the record.
050225 :  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct commission of a serious offense .

0 50225 :  Applicant advised of rights and having elected not to consult with counsel , elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation .

05030 2 :  Report and Dispositi on of Offenses [NAVPERS 1626/7]:
Charge I: V iolation of UCMJ, Article 90: Failure to obey superior commissioned officer. In that SN C_, D_ D., (Applicant) USN, on active duty, having received a lawful command from CDR C_, USS McFaul Commanding Officer, his superior commissioned officer, then known by the said SA C_M(Applicant), to be his superior commissioned officer, to adhere to guidelines of restriction awarded on, 26 January 2005, did, onboard USS McFaul (DDG 74), moored at pier 11, Naval Base Norfolk, VA, on or about 1800, 28 February 2005, willfully disobey the same by missing restricted muster.
Charge II: V iolation of UCMJ, Article 86: Failure to report to appointed place of duty. In that SN C_, D_ D., (Applicant) USN, on active duty, did onboard USS McFaul, while moored at pier 11, Naval Base Norfolk, VA, on or about 1800, 28 February 2005, without authority, fail to go to his appointed place of duty, to wit restricted muster.
Summary and recommendation: RIR to E-1, 3 days bread and water.
 Charges dismissed at executive officer’s inquiry.

050325:  Applicant discharged with a general (under honorable conditions) character of service by reason of misconduct due to the commission of a serious offense. [Extracted from DD214.]
Service Record contains a partial Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050325 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of uncharacterized 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’s discharge was directed by proper authority.

The Applicant implies that his character of service is inequitable because the “punishment was unjust.” 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 two nonjudicial punishment proceedings for violations of Articles 91, 92, 117 and 134 of the UCMJ. Violations of Articles 91, 92 and 134 are serious offenses, for which a punitive discharge is authorized if adjudged as part of the sentence upon conviction by a special or general court-martial. 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. Additional, for the edification of the Applicant, administrative separations are not considered punitive in nature. Relief is not warranted.

The Applicant requests this his discharge be changed to facilitate his reenlistment. The Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment, employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. Relief is not warranted.

The Applicant implies, through the documentation submitted, that he would like his discharge changed on the basis of equity due to post-service conduct. 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. The Applicant provided documentation pertaining to his professional licensing. Examples of additional 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 sufficient 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), 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 91, insubordinate conduct, Article 92, failure to obey an order/regulation or Article 134, communicating a threat.

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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