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NAVY | DRB | 2006_Navy | ND0600318
Original file (ND0600318.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-SR, USN
Docket No. ND06-00318

Applicant’s Request
The application for discharge review was received on 20051206 . The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable or general (under honorable conditions) and the Narrative Reason for Separation be changed . 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 20061025 . 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 and reason for discharge shall not change. The discharge shall remain Uncharacterized 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 attached letter:

“ My discharge was unjust because it was based on a racial issue, which was not the case. It was between two former seaman recruits that had a verbal incident which was made a issue cause of hearsay. I and SA W_ had resolved our differences before other recruits and petty officer got involved. Which made the issue bigger that it really was .

To whom it may concern

 My name is J_ W_. I am writing in reference of upgrading my RE code, separation code, and the reason of separation. I was enlisted in the U.S. Navy from October 8, 2003-December 24, 2003. I was involved in a verbal incident with SR J_ W_. SR W_ and I had later resolved the incident amongst ourselves b ut petty officers and other recruiters got involved since, I was black and he was white which made the incident a racial issue. This caused SR W_ and I to be discharged from the U.S. Navy with a RE code of 4, separation code of JKQ and a misconduct discharge. Since discharge from the US Navy I am currently working as a full time Security Guard at Montgomery Security Services since August 2004 and a full time student at Lincoln Tech since August 2005. I can be reached at (phone number deleted) Thank you for your time .

Sincerely,

 J_ W_ (Applicant) ”


Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         
         Inactive: USNR (DEP)     20030618 - 20031007       COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 20031008              Date of Discharge: 20031224

Length of Service (years, months, days):

          Active: 00 0 2 17
         Inactive: None

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

Age at Entry: 20

Years Contracted: 4

Education Level: 12                                 AFQT: 37

Highest Rate: SA

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): None

* Not Applicable


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

UNCHARACTERIZED /MISCONDUCT, authority: MILPERSMAN, Article 1910-142 (formerly 3630605).
Chronological Listing of Significant Service Events :

030618:  Waiver granted by CO for 1 Chart “C” offense.

 0 31103 :  NJP for violation of UCMJ, Article 92 : Failure to obey a lawful order, to wit: RTCINST 5370.2 dtd 960627 (2 specs), did, on divers occasions, on or about October 2003 .
Violation of UCMJ, Article 134 : Threat, communicating .
         Award: Forfeiture of $ 532. 00 pay per month for 2 month s , restriction and extra duty for 45 days, reduction to E- 1 . No indication of appeal in the record.
031224 :  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct due to commission of a serious offense as evidenced by CO’s Mast of 031103 for VUCMJ, Article 92, failure to obey a lawful order issued by CO, RTC Great Lakes, to wit: RTCINST 5370.2, dated 960627.

031224 :  Commanding Officer, Recruit Training Command, directed the Applicant ’s discharg e with an uncharacterized character of service by reason of misconduct due to the commission of a serious offense . Commanding Officer’s comments : “ The specific circumstances surrounding the misconduct warrants separation in this case, however, does not warrant an Other than Honorable characterization. The servicemember has demonstrated a serious lack of core values during this incident. I direct Personnel Support Activity Detachment, Recruit Training Command, Great Lakes to separate the subject named member from the naval service within 10 working days after receipt of this letter. Per reference (b), the DD Form 214 will include the following: BLK 23: DIS C HARGED
 BLK 24: UNCHARACTERIZED (ENTRY LEVEL SEPARATION )
 BLK 25: MILPERSMAN 1910-142
 BLK 26: JKQ
BLK 27: RE-4 ”
Service Record contains a partial Adm inistrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20031224 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of uncharacterized. 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 requests that his discharge be changed to honorable or general (under honorable conditions). By regulation, members notified of intended recommendation for discharge within the first 180 days of enlistment are eligible for an uncharacterized or entry-level separation characterization of service. Unless there were unusual circumstances regarding a servicemember’s performance or conduct that would merit an honorable characterization, an uncharacterized discharge is generally considered the most appropriate characterization of a member’s service. The Applicant’s service was marred by nonjudicial punishment proceedings for violations of Articles 92 and 134 of the UCMJ. The Applicant’s violations of Articles 92 and 134 are considered serious offenses for which a punitive discharge is authorized if adjudged as part of the sentence upon conviction at 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 to honorable. However, the Applicant should be aware that, with respect to nonservice-related administrative matters, i.e., VA benefits, educational pursuits, and especially civilian employment, an uncharacterized separation is considered the equivalent of an honorable or general (under honorable conditions) discharge.
Relief denied.

The Applicant requests that the narrative reason for separation and separation code be changed. The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted. The Applicant was subject to nonjudicial punishment proceedings for violations of the UCMJ. Both violations of the UCMJ were serious offenses. The Applicant’s implication, that his punishment and separation were based on hearsay, is not supported by the evidence of record. The Applicant committed two serious offenses. No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. To change the Narrative Reason Separation would be inappropriate. Relief denied.

The Applicant implies that his discharge should be changed due to post-service conduct. 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), 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, Article 92, disobey 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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