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NAVY | DRB | 2006_Navy | ND0600538
Original file (ND0600538.rtf) Auto-classification: Denied


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

ex-GMSA, USN
Docket No. ND06-00538

Applicant’s Request
The application for discharge review was received on 20060308 . 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 20070111 . 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 minor disciplinary infractions .

The NDRB did note administrative error(s) on the original DD Form 214. Block 12a , Record of Service, Date Entered AD this Period, should read : “ 94 12 06 ,” and Block 12c , Record of Service, Net Active Service This Period, should read: “04 03 1 4 ,” and Block 24, Character of Service, shou ld read: “ GENERAL (UNDER HONORABLE CONDITIONS) .” The Commander, Navy Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.



PART I - ISSUES AND DOCUMENTATION


Decisional Issues
No decisional issues were submitted by the Applicant.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 4)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19940708 - 1994120 5       COG
          Active: None

Period of Service Under Review :
Date of Enlistment: 1994120 6              Date of Discharge: 19990319

Length of Service (years, months, days):

          Active: 0 4 0 3 14
         Inactive: None

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

Age at Entry: 18

Years Contracted: 4 ( 24 -month extension)

Education Level: 12                                 AFQT: 70

Highest Rate: GM 3
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): National Defense Service Medal, Navy Unit Commendation (1 star), Navy Achievement Medal, Sea Service Deployment Ribbon, Battle “E” Award, Armed Forces Expeditionary Medal, First Good Co nduct Medal For Period Ending 98 1018.

* Not Available


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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MILPERSMAN, Article 1910-138 (formerly 3630615).
Chronological Listing of Significant Service Events :

951018:  NJP for violation of UCMJ, Article 121:
          Specification: O n or about 94100 1, steal (4) Hyundai Sonata hub caps .
         Award: Forfeiture of $150.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1 (suspended for 6 months). No indication of appeal in the record.
981123:  Applicant subject to nonjudicial punishment. [Extracted from vacation dated 990215.]
990215:  Forfeiture of pay and reduction in pay grade awarded at NJP on 981123 vacated due to continued misconduct.
990216 :  NJP for violation of UCMJ, Article 86 : Unauthorized absence
Violation of UCMJ, Article 111: Driving under the influence (DUI)
         Award: Forfeiture of $ 537.00 pay per month for 2 month s , restriction and extra duty for 45 days, reduction to E- 2 . No indication of appeal in the record.
990319:  DD Form 214: Applicant discharged with a general (under honorable conditions) character of service by reason of misconduct, separation code HKN (minor disciplinary infractions).

Service Record did not contain the Administrative Discharge package.
 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 19990319 by reason of misconduct due to minor disciplinary infractions (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 met the criteria for discharge by reason of misconduct due to minor disciplinary infractions, 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.

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 three nonjudicial punishment proceedings for violations of Articles 86, 111 and 121 of the UCMJ. Violations of Articles 111 and 121 are serious offenses. 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 Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge. Relief on this basis would be inappropriate.

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, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided any post-service documentation to consider mitigating the misconduct that resulted in the characterization of discharge. 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 03 January 2000, Article 1910-138 (formerly 3630614), SEPARATION BY REASON OF MISCONDUCT - MINOR DISCIPLINARY INFRACTIONS.

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 111, drunken driving or Article 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 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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