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

  ex-SR, USNR
Docket No. ND05-00738

Applicant’s Request

The application for discharge review was received on 20050331.  The Applicant requests the 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 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 – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated:

1.  “I was mistreated by my department head, my supervisor BM1 H___ always borrowed money from me and I always gave it to him.  And one night BM1 H___, SR B___ and SA Y__ came to me and got money.  The only way they got the money is BM1 H___ said he would make sure they give it back to me, so about a month went by and SR B___ did not pay me he kept giving me excuses.  But BM1 H___, and SA Y___ gave me my money.  So one day the New Master at Arms came to me and told me that I was going to Captain Mast.  And I said for what and she said that I was going for what SR B___ said which was I was harassing him over money.  Which was not the truth.  But I did ask him several times for my money.  SR B___ did not tell the Master at Arms the truth and they went on his word and his friends word.  And that wasn’t right.  Because I was a good sailor I enjoyed my job, and also I was promoted out of Boot Camp.  Never got in trouble until SR B___ lied.  Then when I went in front of the Captain he didn’t even let me explain my side.  He ask me how I plea guilty or not guilty.  And I said not guilty, and he said SA D___ I reward you forty-five day extra duty, forty-five days restriction, half month pay for three month I think, and administrative separation.  I felt bad because I was telling the truth and the Captain went in their favor.  And now after all these years I still feel mistreated by the United States Navy.  I even wanted to go to court on these but they didn’t let me.  They let me talk to a lawyer one time, and he was from Philadelphia.  It seem like after I told him I wanted to go to court they started treating me bad.  They sent me to the Brig for 3 days.  The only thing I could eat was bread.  They also didn’t tell me about the type of discharge I was getting.  I wanted to go to court but, like I say they waited me out, with poor treatment.  And I never lost my cool.  I still want to know way was I treated so bad.  I think that BM1 H___ and the other two guys worked together and lied just so SR B__ didn’t have to pay me, they were friends they went out to clubs every night they was off.  See I didn’t, but I didn’t mind helping people.  That was my intentions.  Once again the same guy I gave money to was my supervisor, on the USS Nito-Leonardo New Jersey.  But when I went to captain mast he didn’t want to comment, and I also had witnesses that was in the same Department Head they didn’t even call them in.”

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 		891026 - 900621
	Active:   None

Period of Service Under Review:

Date of Enlistment:  901026		Date of Discharge:  920701

Length of Service (years, months, days):

	Active:    01  06  28
	Inactive:  00  01  08

Age at Entry:  18			Years Contracted:  8

Education Level:  12			AFQT:  31

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA*		Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  None

*No Marks made available for review.

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

901204:	Ordered to active duty for 24 months under the Seaman Apprenticeship program.

920326:	NJP for violation of UCMJ, Article 92: Failure to obey a lawful order or regulation [Extracted from CO’s letter of 920528:  “By wrongfully lending money to other members of the Armed Services in excess of 18% annual simple interest.”].
Award:  Forfeiture of $392.50 pay per month for 1 month, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

920416:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

920528:	Applicant advised of rights and having elected to consult, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

920528:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. 

920611:	NJP for violation of UCMJ, Article 92, 3:  Failure to obey a lawful order [Dereliction in the performance of duties.]  Award:  Three days bread and water confinement.  No indication of appeal in the record.

920625:	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 19920701 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.  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 two nonjudicial punishment proceedings for violations of Article 92 of the UCMJ.  The Applicant’s Article 92 violation for failure to follow an order/regulation is considered 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 Applicant contends that he was mistreated by his department head and that he loaned money to his shipmates with his department head’s understanding.  The Applicant further contends that he was refused court-martial in lieu of NJP and that he was not informed “the type of discharge” he was getting.  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 the contention that he was mistreated by his department head or that his separation was in any way improper or inequitable.  The Applicant’s record shows he was sent to NJP for the commission of a serious offense and that on 920416 he was notified of the reason for his recommendation for separation as well as the least favorable characterization possible.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.   Additionally, service members attached to a vessel do not have the right to demand court martial in lieu of nonjudicial punishment.  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), effective 15 Aug 91 until 
04 Mar 93, 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 an order/regulation, 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