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

  ex-SR, USN
Docket No. ND05-00725

Applicant’s Request

The application for discharge review was received on 20050317.  The Applicant requests his characterization of service received at the time of discharge changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050713.  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/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“Issue 1: The discharge was improper because I was not properly informed of my rights and the consequences that would result from the proceedings.  At that time, I was 19 years old and was having family issues, so I requested to be discharged.  I have only been in the service for less than 13 months.

Issue 2: The discharge was inequitable because the superior officer in charge was racially prejudiced.  He insinuated that I was lazy and should not be able to work for any type of government agency again.  I did not know who to speak to or trust when he spoke those words.  His words has rang true for the past 11 years.  I planned to be a special education teacher for the city but I am discriminated against when I honestly mention my discharge characterization of Under Other Than Honorable Conditions.  I am now 30 years old.  I have degrees and certificates that I have pursued and accomplished, but I have not produced because of an incident 11 years ago.  I was a naïve and angry young man.  I am seeking a second chance.  Please upgrade my discharge characterization to Honorable.”

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214 (Member 1 and 4)
Bachelor of Arts degree, dated May 30, 2003
Associate in Arts degree, dated August 18, 2001
Certificate of qualification as surgical technologist, dated November 17, 1995
Transcript from California State University

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Inactive: USNR (DEP)	920828 - 930712	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  930713		Date of Discharge:  940920

Length of Service (years, months, days):

	Active:    01 02 08	Does not exclude lost time
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  42

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NOB			Behavior:  NOB		OTA:  NOB

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SASM

Days of Unauthorized Absence:  20

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

940822:	Applicant to unauthorized absence 1230, 940822.

940912:	Applicant from unauthorized absence 0034, 940912 (20 days/surrendered).

940912:	NJP for violation of UCMJ, Article 86: Absence without leave, violation of UCMJ, Article 92: Disobeying a lawful order.
	Award: Forfeiture of $450 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  Forfeiture suspended for 2 months.  No indication of appeal in the record.

940912:	Applicant notified of intended recommendation for discharge by reason of misconduct due to the commission of a serious offense.  The characterization of your service may be Other Than Honorable.

940912:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.  Applicant did not object to separation.

940912:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

940923:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19940920 under other than honorable conditions for misconduct due to commission of a serious offense (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

Issue 1:  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 or inequity after a review of Applicant’s case.  When the service of a member of the U.S. Navy has met the standard of acceptable conduct and performance, 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.  Despite the servicemember’s record of service, certain serious offenses warrant separation from the naval service in order to maintain proper order and discipline.  The Applicant’s service was marred by a nonjudicial punishment proceeding for violations of UCMJ Articles 86 (unauthorized absence) and Article 92 (failure to obey order).  There is credible evidence in the record that the Applicant willfully disobeyed the order to “move aboard the ship”, thus substantiating the misconduct for which he was separated.  Separation under these conditions normally results in characterization of service of under other than honorable conditions.  The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant alleged that his other than honorable discharge is inequitable because “the superior officer in charge was racially prejudiced”.  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.  There is no evidence in the record, nor has the Applicant produced any evidence, to support his contention that his chain of command was racist.  The Applicant’s statements alone do not overcome the government’s presumption of regularity.  The record contains no evidence of any wrongdoing by the Applicant’s commanding officer or anyone else in the discharge process.  Relief denied.  

The Applicant contends that his discharge was improper because he was not properly informed of his rights and consequences that would result from the proceedings.  The record contains proper documentation initialed and signed by the Applicant acknowledging his discharge may be characterized as other than honorable, waiving his rights to and administrative board, legal representation, right to make a statement, and specifically stating that he did not object to the separation.  By waiving his right to an administrative board, the Applicant accepted the discharge recommended in the letter of notification.  The Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.  Relief denied.  

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.  The Applicant submitted the following documentation; DD-214, Bachelor’s of Arts degree, Associate in Arts degree, certification of qualification as surgical technologist, transcript from California State University.  After careful consideration, the Board concluded the Applicant’s post-service achievements have been insufficient to mitigate his misconduct while in the Naval service.  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 other evidence related to his discharge at that time.  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 9, effective 
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 92, (failure to obey order) if adjudged at a Special or General Court-Martial.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

E.  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