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NAVY | DRB | 2006_Navy | ND0600638
Original file (ND0600638.rtf) Auto-classification: Denied


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

ex-AR, USN
Docket No. ND06-00638

Applicant ’s Request
The application for discharge review was received on 20060412 . The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions) . 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 20070125 . 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 serious offense .



PART I - ISSUES AND DOCUMENTATION

Decisional Issues

No decisional i ssues were submitted by the Applicant .

 Documentation
In addition to the service and medical record s , the following additional documentation, submitted by the Applicant , was considered:
Applicant ’s DD Form 214 (Member 1 and 4)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: Unknown
         Active: None

Period of Service Under Review :
Date of Enlistment: 19990222              Date of Discharge: 19990903

Length of Service (years, months, days):

         Active: 00 0 6 12 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 5 6 day s
         Confinement:              None

Age at Entry: 18
Years Contracted: 4
Education Level: Unknown                            AFQT: Unknown

Highest Rate: AR

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 Available


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

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

Chronological Listing of Significant Service Events :

990606 :  Applicant to unauthorized absence at 0700 on 990606 .

 990614:  Naval Hospital Pensacola: Applicant brought to emergency room by local police after traffic stop in which Applicant behaved erratically and punched/ broke car window. Applicant acknowledges having consumed six pack of beer earlier in the evening and admits to using crystal methamphetamine in past two days. Applicant relates pre-service, non - disclosed psychiatric hospitalization.

990707 :  Applicant from unauthorized absence at 164 5 on 990707 .
990708 :  Applicant to unauthorized absence at 0700 on 990708 .

 990802 :  Applicant from unauthorized absence at 2100 on 990802 .

990803:  Psychiatric evaluation:
          Impression: I: Alcohol abuse. II: Borderline and Dependant Personality Features. III: Post lacerations on left forearm.
         Recommendations: 1. Command DAPA evaluation. 2. Psychologically fit for duty. 3. Retention a command decision.

990818 :  NJP for violation of UCMJ, Article 86 ( 2 specs): Unauthorized absence .
         Award: Forfeiture of $ 479. 00 per month for 2 month s , restriction and extra duty for 45 days. No indication of appeal in the record.
990824:   Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct - commission of a serious offense .
990824 :  C hief of Naval Education and Training directed the Applicant 's discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.


PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19990903 by reason of misconduct due to commission of serious offense - absent without leave - 30 days or more (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). 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 properly notified of his Commanding Officer’s intention to recommend his separation and that he was afforded all rights which he elected at notification.

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 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 nonjudicial punishment proceedings for violations of Article 86 of the UCMJ. The Applicant’s violation of Article 86 for unauthorized absence in excess of 30 days is the commission of a serious offense. There is also evidence in the record that Applicant violated Article 112a, wrongful use of a controlled substance, also the commission of a serious offense. 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 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. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment, enlistment or educational opportunities. Relief is not warranted.

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 29 Mar 00, 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 86, unauthorized absence for more than 30 days.

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction . You should read Enclosure (5) of the Instruction 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 Instruction 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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