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

FOR OFFICIAL USE ONLY

 ex-MSSN, USN
Docket No. ND05-00798 

Applicant’s Request

The application for discharge review was received on 20050406.  The Applicant requests the Narrative Reason for Separation be changed to “End EAOS” and characterization of service 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 20050819.  After a thorough review of all 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 General (Under Honorable Conditions) 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/or attached document/letter:

“No Administrative Board Hearing

No Court Martial

No Review to Determine Rehabilitation.”

Submitted by Applicant subsequent to submission of application:

“Dear Board Members:

This letter is in response to the letter sent from (NDRB) on 28 July, 2005.  It is regrettable but not surprising to this Applicant that records are missing regarding the Applicants discharge.  A single incident of a Capitan’s Mast is the only supporting fact that has been justifying a misconduct discharge of the Applicant.  Such a discharge is usually reserved for serious offences such as sexual crimes, homosexuality, and violent crimes.  In most cases a civilian record is provided.  The Applicant was never recommended for discharge by the Commanding Officer.  The decision to discharge was his and his alone.  The Commanding Officer after issuing punishment at a Captain’s Mast issued an additional punishment of an administrative discharge to the Applicant.  The Applicant was transferred TAD to Comsubgroup 10 and discharged.  The Applicant has completed several rate courses to include but not be limited to Mess Management Specialist 1 and C and Legal Specialist 1 and C.  The Applicant has no time lost.  The Applicant has never been even late to a muster.

Without arguing the application or merit of the Captain’s Mast, which is to be NON Judicial Punishment has been turned in to just the opposite in this case.  This Applicant can not provide documentation which never existed but the Applicant wishes to point out that from being an enlisted E-4 to being discharged with a misconduct discharge with out any supporting documentation at all the Administrative Discharge Procedures have been completely by passed.  The discharge in this case was walked thru.  Just the simple fact that the type of discharge is issued to very serious offences and a under honorable was issued causes the justification to be called into question, moreover the fact that the exact nature of the so called misconduct not being disclosed on the DD-214 further ask for justification

This Applicant has a heavy heart in bringing this matter before the Board.  I have seen that rank makes right, no matter what right is.  I have seen my dreams in being a sailor be crushed.  I take full complete and absolute responsibility and I have accepted and completed punishment at a Captain’s Mast.  The Captain decided to issue further punishment.  Being punished and punished again is not justice but vengeance.  Many service members have had a NJP and have served with distinction.  I have been denied that chance.  If it is within the Boards power, I respectfully and humbly request that my discharge be reversed and to be restored to active duly.  In the alternative I respectfully request that the misconduct be changed to expiration of enlistment and for the discharge to be honorable.  In light of missing documents, the prejudice in this case is far outweighed by any presumption of regularity in government affairs.  The Applicant has endured an unjustified misconduct discharge for several years.  The Petition bought by the Applicant outlines the lack of procedure and total disregard for Naval Personal Procedures and The Uniform Code of Military Justice and request any justification as to any misconduct to justify the Applicant’s discharge.  On the point of missing records the Applicant wishes to point out that the commands involved are very small.  U.S.S. Nebraska (Blue) had only 132 crew members.  There is no excuse for lack of proper record keeping in such a small command, moreover, the very documents are absolutely necessary for any review, if the command exercised influence in this discharge they certainly would not want a record.  Any document that would evidence and detail the justification to discharge would not be filed

Without objection, the Applicant request that this letter be made part of the record.

Respectfully,
[signed]
J_ W. C_ (Applicant)”

Documentation

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

DD Form 149, dtd December 13, 2004
Petition for Correction of Naval Records (4 pages
Applicant’s DD Form 214
Five slides from Bureau of Naval Personnel discharge procedures presentation
Uniform Code of Military Justice, Article 15 (3 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	19910830 - 19920218		
	Active:   USN 			19920219 - 19930703		HON
	Inactive: USNR		19930704 - 19970331		

Period of Service Under Review:

Date of Enlistment:  19970401		Date of Discharge:  19990113

Length of Service (years, months, days):

	Active:    01 09 13
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  27

Years Contracted:  Unable to determine

Education Level:  GED				AFQT:  42

Highest Rate:  MSSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0 (1)	Behavior:  2.0 (1)	OTA:  2.83

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Strategic Deterrent Patrol Pin with 1 Bronze Star

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  MILPERSMAN, Article 1910-142.

Chronological Listing of Significant Service Events: 

970401:	Reenlisted this date MEPS Philadelphia, PA. 

981027:	NJP.  No further information found in service record.

990113:	DD Form 214: Applicant discharged, general (under honorable conditions) by reason of misconduct due to commission of a serious offense.

Service Record did not contain the Administrative Discharge package.  

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19990113 by reason of misconduct due to commission of a serious offense (A) with a service characterization of General (under honorable conditions).  After a thorough review of all available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).  The Board presumed regularity in the conduct of governmental affairs (D).

Issue:  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  After a review of Applicant’s case the Board discovered no impropriety or inequity.  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 his service as honorable.  A general (under 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 states his discharge was based on one isolated incident.  In the absence of a complete discharge package, the Board presumed regularity of governmental affairs.  Therefore, the Board presumed the Applicant’s discharge to have been conducted in accordance with that described in reference (A).  If the Applicant feels his discharge was administratively flawed he bears the burden of establishing his issues through the presentation of substantial and credible evidence.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The Applicant stated that his misconduct, which resulted in his NJP and administrative discharge, was the act of “signing his submarine qualification card and representing the signatures as true”.  It is reasonable for the board to accept as true that the Applicant could have been charged for a violation of UCMJ Article 107 (false official statement).  The MILPERSMAN 1910-142 defines a violation of Article 107 as a serious offense by warranting a punitive discharge if convicted at courts-martial.  This substantiates the misconduct by commission of a serious offense for which the Applicant was discharged.  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 issues.  There is no evidence in the record, nor has the Applicant produced any evidence, to support his contention that the reason for his discharge is incorrect or that his discharge was improperly characterized.  The Applicant’s statements alone do not overcome the government’s presumption of regularity.  Relief denied.  

The Applicant alleges that his discharge was a result of prejudice.  The record, however, contains no evidence of any wrongdoing by the Applicant’s Commanding Officer or anyone else for that matter in the discharge process.  The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary.  As such, this Board presumed that Applicant’s discharge was regular in all respects.  Relief denied.  

The Applicant requested that the reason for his discharge be changed to “End EAOS”.  The NDRB, under its responsibility to examine the propriety and equity of a discharge, will change the reason for discharge if such a change is warranted.  The record does not support the Applicant’s contention of EAOS.  However, it does document NJP (which the Applicant states was as result of his falsifying documents).  This substantiates the misconduct by commission of serious offense, which resulted in the Applicant’s discharge.  No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged.  To change the Narrative Reason for Separation would be inappropriate.

Additionally, the Applicant contends that his discharge was inequitable.  He considers the discharge as resulting from his NJP.  The Applicant’s issue is without merit.  Administrative discharge processing is a separate and distinct process from punitive proceedings such as NJP and court-martial.  Administrative discharge processing is administrative in nature and not a form of punishment.  For the edification of the Applicant, the administrative discharge process may be initiated prior to, following, or even in the absence of NJP as a completely separate though parallel process.  The record does not contain evidence nor did the Applicant submit evidence that demonstrates the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.  Relief denied.  

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  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 did not submit documentation for the Board to consider.  
 
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 18, effective 
12 Dec 97 until 29 March 2000, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

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

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

D.   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.

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