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

FOR OFFICIAL USE ONLY

   ex-AA, USN
Docket No. ND05-01505

Applicant’s Request

The application for discharge review was received on 20050912.  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 20060619.  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 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:

“Because the general/under Honorable Conditions do not reflect me as a good citizen of the United States and society.  Also I did not granted all my rights before I left the service.  I would like the board to change my general/under honorable conditions change to honorable.  In addition, it was a racist discharged for the fact of being black therefore that unjust discharged has to change.”

Documentation

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

Evaluation Report and Counseling Record, dtd January 11, 2001
Certificate of completion of Airman Apprentice Training Course, dtd January 13, 2000
Certificate of completion of Sight and Hearing Conservation Training, dtd March 22, 2000
SE License certification, dtd October 27, 2000
Dental Health Questionnaire, dtd October 12, 1999
SE License certification, dtd November 1, 2000
Applicant’s DD Form 214 (Member 1 and 4)
Certificate of completion of Security Guard Training School, dtd March 13, 2004
Certificate of completion of Lead/Asbestos/Cadmium Training, dtd March 20, 2000
Certificate of completion of Hazardous Material Training, dtd March 30, 2000
Letter of Appreciation from Commanding Officer HCSS-8, dtd May 18, 2000
Thirty-five pages from Applicant’ service record

PART II - SUMMARY OF SERVICE

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

	Inactive:	USNR (DEP)	Specific dates not in record	ELS
		USNR (DEP)	19990914 - 19990923	COG
	Active:	None

Period of Service Under Review:

Date of Enlistment:  19990924		Date of Discharge:  20010129

Length of Service (years, months, days):

	Active:    01  04  06  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  1 day
	Confinement:		  None

Age at Entry:  22

Years Contracted:  4

Education Level:  12				AFQT:  31

Highest Rate:  AA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.0 (1)			Behavior:  1.0 (1)		OTA:  2.17

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  MILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events: 

990914:	Pre-service waiver for DEP discharge granted.

000421:	Disciplinary Review Board for substandard performance. Applicant referred to XOI. [Extracted from Commanding Officer HCSS-8 letter dtd 000802]

000517:	NJP for violation of UCMJ, Article 92: (Insubordinate conduct toward Warrant Officer, Noncommissioned Officer, or Petty Officer)
	Specification: In that Airman Recruit M_ F_(Applicant), U.S. Navy, at Helicopter Combat Support Squadron EIGHT, on or about 28 April 2000, was disrespectful in deportment toward Boatswain’s Mate First Class R_ C_, U.S. Navy, a Petty Officer, then known by the said Airman Recruit M_ F_(Applicant) to be a superior petty officer, who was then in the execution of his office by saying to him “report on mid-check as of 2300 on 28 April 2000, fail to obey the same.
	Violation of UCMJ, Article 92: (Failure to obey order or regulation)
	Specification: In that Airman Recruit M_ F_(Applicant), U.S. Navy, Naval Station Norfolk, having knowledge of a lawful order issued by Boatswain’s Mate First Class R_ C_, U.S. Navy, a Petty Officer, to report to work at 1030 p.m. for night check in the Tool Room, an order which it was his duty to obey, did at Helicopter Combat Support Squadron EIGHT, on 28 April 2000, fail to obey the same.
Violation of UCMJ, Article 134: (Indecent language)
Specification: In that Airman Recruit M_ F_(Applicant), U.S. Navy, Naval Station Norfolk, did at Helicopter Combat Support Squadron EIGHT, on or about 28 April orally communicate to Boatswain’s Mate First Class R_ C_, U.S. Navy, certain indecent language, to wit: I don’t give a f---, You know what, write me up, I don’t give a f---.  F--- this s--- mother f-----.
Violation of UCMJ, Article 86: (Unauthorized absence)
Specification: In that Airman Recruit M_ F_(Applicant), U.S. Navy, Naval Station Norfolk, on active duty, did, on or about 1530 11 May 2000, without authority, absent himself from his organization, to wit: Helicopter Combat Support Squadron EIGHT, located at Naval Station Norfolk, Virginia, and did remain so absent until on or about 0930, 12 May 2000.
Violation of UCMJ, Article 86: (Unauthorized absence)
Specification: In that Airman Recruit M_ F_(Applicant), U.S. Navy, Naval Station Norfolk, on active duty, did, on or about 2230 28 April 2000, without authority, absent himself from his organization, to wit: Helicopter Combat Support Squadron EIGHT, located at Naval Station Norfolk, Virginia, and did remain so absent until on or about 0730 29 April 2000.
Award:  Forfeiture of $465.15 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

000802:	Commanding Officer, Helicopter Combat Support Squadron EIGHT letter to Commander, Navy Recruiting Command. Low quality recruit report ICO AR M_ F_ (Applicant). Commanding Officer’s comments: Since reporting onboard 000128, AR F_’s (Applicant) performance and behavior has been substandard and unsatisfactory. He has been counseled on numerous occasions for his tardiness, uniform appearance, and lack of respect toward his seniors and peers. He has been counseled by his LPO on several occasions (each session lasting approximately 30 minutes). Additionally, a two-hour Disciplinary Review Board was conducted on 000421, resulting in him being recommended for XOI.

001017:	Applicant to unauthorized absence at 0630 on 001017.

001018:	Applicant from unauthorized absence at 0800 on 001018 (1 days/surrendered).

001103:	NJP for violation of UCMJ, Article 86: (Absence without leave)
Specification: In that Airman Recruit M_ F_(Applicant), U.S. Navy, Naval Station Norfolk, on active duty, did on or about 0630 17 October 2000, without authority, absent himself from his organization, to wit: Helicopter Combat Support Squadron EIGHT, located at Naval Station Norfolk, Virginia, and did remain so absent until on or about 0800 18 October 2000.
	Award:  Forfeiture of $563 per month for 2 months, extra duty for 45 days.  No indication of appeal in the record.

001218:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct – commission of a serious offense.

001218:	Applicant advised of rights and having consulted with counsel, elected to submit a statement for consideration by the separation authority, to obtain copies of the documents used to support the basis for the separation, to request transfer to the Fleet Reserve/Retired/Retired Reserve list if applicable, and to General Court-Martial Convening Authority review.

010112:	Alcohol Abuse Evaluation by certified counselor at Addictions Rehabilitations Department (ARD). Applicant found to be neither alcohol dependent nor an alcohol abuser. [Extracted from Psycological Evaluation 010124.]  Applicant found to not meet DSM IV criteria. Applicant can be separated. [Extracted from separation physical 010111.]

010122:	Applicant’s statement.

010123:	Commanding Officer, Helicopter Combat Support Squadron EIGHT recommended discharge with a general (under honorable conditions) by reason of misconduct-commission of a serious offense.  Commanding Officer’s comments:  “Despite continuous counseling and disposition of NJP, AR F_(Applicant) continues to commit misconduct as previously noted.  AR F_(Applicant) is either incapable, or simply unwilling, of adhering to the rules and regulations of this command and the U.S. Navy, and to conduct himself in a manner conducive to good order and discipline.  Since notification of his pending separation, AR F_(Applicant) has become nothing short of a cancer on the morale and good order of this command.  He has made repeated false accusations of mistreatment ranging from his LPO up to the Commanding Officer, has absolutely no concept of respect for his chain of command, and accounting for his whereabouts day-to-day has become a tremendous drain on manpower resources.  Therefore it is my decision to separate AR F_(Applicant) from the naval service by reason of Misconduct - Commission of a Serious Offense, and that his characterization of discharge is General (Under Honorable Conditions). Please feel free to contact either myself directly or my Legal Officer with any questions regarding this package.

010124:	Psychological evaluation:  Diagnosis:  AXIS I:  Occupational problem.  Relational problem.  AXIS II:  No diagnosis.  AXIS III: Allergic conjunctivitis (per medical record).

010124:	COMNAVAIRLANT Norfolk, VA directed the Applicant's discharge with a general (under 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 20010129 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of general (under 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 Applicant alleges impropriety in that he was “not granted all my rights.” He also alleges impropriety in that his discharge was racist and that he was “discharged for the fact of being black.”  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 of impropriety.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  The Board discovered no impropriety after a review of Applicant’s case.  Relief denied.  

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.  A 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 a Disciplinary Review Board for substandard performance, two nonjudicial punishment proceedings for violations of Articles 91, 92, 134, and 86 (3 specs) of the UCMJ.  Violations of Articles 91, 92, and 134 of the UCMJ are considered 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 Applicant requests an upgrade because his current discharge does “not reflect me as a good citizen of the United States and society.” This issue does not serve to provide a foundation upon which the Board can grant relief.  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 on the propriety and equity of the discharge. 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.  The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this 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 31, dated 20 Feb 01, effective 25 Jan 01 until 21 Aug 02, 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 91 – insubordinate conduct toward Petty Officer, Article 92 – failure to obey order or regulation, and Article 134 – indecent language.

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