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

FOR OFFICIAL USE ONLY

  ex-BUCA, USN
Docket No. ND05-01544

Applicant’s Request

The application for discharge review was received on 20050920.  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 20060721.  After a thorough review of the 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 shall not change.  The discharge shall remain Under Other Than 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:

“To Review Board:

This letter is in regards to upgrading my discharge.  I would like to give you an account of the involvement leading to my discharge.  My first occurrence that led to a warning was that I had gotten into a fight with one of my Seabees at the Mississippi barracks.  Some of the Seabees were drunk and picked a fight with me and one of my friends G_ tried to stop it but got involved at the end of the fight because he got hit.  The Seabee that had started the fight had a friend that broke my barracks window and we all got in trouble for fighting and the Commander at the time wanted to discharge all of us except the Seabee that broke the window.  The three of us fought to stay in the Navy and went in front of the Board.  At the end the Board decided to keep us in, but had year probation.  Fight happened in 2002.

Went to Iraq in 2003, in August 2003 I returned from Iraq and a fellow Seabee E_ got involved in drugs.  Navy Seabees, G_, S_ P_ and myself S. C_(Applicant) rented an apartment with Seabee Po’s wife.  E_ was living on the base housing.  He would stop by and visit us when he was in the neighborhood.  He had friends there that were taking care of his dogs.  E_ was caught by Mississippi Narcotics Police Team and was arrested and jailed, The Narcotics team went through our house and found nothing and left their card with my roommate’s wife, M_ P_ for me to give them a call.  Seabee S P_ was on deployment, Seabee G_ was in Mississippi as well as myself.  I gave MS Narcotics Police a call as soon as I got back to my apartment house and they needed to see me to give a testimony.  My Commander knew about E_ but I was still unaware of what had happened.

The MS Narcotics Police told me to stop by on Monday and give testimony.  We were at our commander NMCB 133 spaces and told my chief in charge about the Narcotics team had done, I also told our MA1.  They told me to go and find out what they wanted.  That Monday I went and told answered their questions and told them what I could regard E_.  I was unaware of what E_ was doing or what he was involved in.  The Officer told me to come back the next day and give statement again and I did.  I later found out that the drug was Marijuana.  The officer told me I could leave and I went back to my command.  As far as I new everything was fine and I was scheduled to go on leave and see my family, which I had not seen in two years.  I came back from a three weeks leave to receive bad news that I was going to Mast because they thought I knew what E_ was doing.  I told them I didn’t know and wrote my statement.  Mast told me that I had a year probation from the last incident of trouble (fight) they could discharge me for any reason whatsoever.  I was in front of my Mast and told them of my testimony and they came back and told me I was being discharged for not telling them that I knew about E_ was doing.  (Drug test taken on myself Negative Results.)

The fact was I did not know what E_ had been doing or that he was discharged.  Upon my return from leave they told me of all the trouble that E_ had in his previous command.  The MA1 at the time told me I could go to Court Martial.  I decided not to because the first offense for fighting was hard to keep myself in and I figured they wanted me out and nothing I would do would help me.  I like the Navy and always will, I would go to Iraq as many times as they needed me to.  I am a hard worker and graduated in Honors for A school, advancement for third class with a year re-enlistment, finished Builders Book Volume 1 and 2, and other ribbons and metals.

Sincerely,
[signed]
S_ D_ C_
(social security number deleted)”

Documentation

In addition to the service and medical records, 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:  USNR (DEP)	20001128 - 20010924	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20010925		Date of Discharge:  20040109

Length of Service (years, months, days):

	Active:    02  03  15
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  18

Years Contracted:  4 (12 month extension)

Education Level:  12				AFQT:  40

Highest Rate:  BUCN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0 (2)	Behavior:  2.5 (2)	OTA:  2.17*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Navy Battle “E” Ribbon, Sea Service Deployment Ribbon, Navy Unit Commendation, National Defense Service Medal, Presidential Unit Citation, Rifle Marksmanship Medal

*Compiled from partial reports

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

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

Chronological Listing of Significant Service Events: 

021204:	NJP for violation of UCMJ, Article 92:
	Specification: In that BUCA S_ D. C_(Applicant), USN, NMCB-133, on active duty, having knowledge of a lawful order issued by CBC Barracks Regulation, an order which it was his duty to obey, did at Gulfport, MS, on or about 2400, 27 October 2002, fail to obey the same by wrongfully having visitors in his BEQ room after hours.
Violation of UCMJ, Article 128:
Specification: In that BUCA S_ D. C_(Applicant), USN, NMCB-133, on active duty, did, at BEQ 309, NCBC Gulport, MS, on or about 25 October 2002, unlawfully strike CECA S_
Violation of UCMJ, Article 91:
Specification: In that BUCN S_ D. C_(Applicant), USN, NMCB-133, on active duty, on or about 3 December 2002, was disrespectful toward MA1 C_, a Petty Officer, then known to the said BUCN C_(Applicant) to be a First Class Petty Officer, who was then in the execution of the Legal Office, “by turning his head, began humming and patting his foot on the floor and showing the attitude as if he did not care or had to listen.”
	Award:  Forfeiture of $617 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

021209:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct – commission of a serious offense.

021209:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

030124:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct – commission of a serious offense, that such misconduct warranted separation under other than honorable conditions, and recommended the separation be suspended for 12 months.

030317:	Commanding Officer, Naval Construction Battalion ONE THIRTY THREE forwarded administrative separation package to Commander, Navy Region Southeast, recommending Applicant’s retention as recommended by the Administrative Separation Board.

030827:	CNPC message to NMCB ONE THREE THREE directing a page 13 counseling/warning be placed in the Applicant’s service record as a result of the board held on 030124.

030828:	CNPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.  Execution of discharge suspended pending further observation of Applicant’s performance and conduct.

031229:	NJP for violation of UCMJ, Article 92: Disobeying a lawful order.
	Award:  Forfeiture of $545 per month for 2 months, restriction and extra duty for 30 days, reduction to E-2.  No indication of appeal in the record.

Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040109 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of under other than honorable conditions.  After a thorough review of the available 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).

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 on 20021204 for violations of Articles 91, 92 and 128 of the UCMJ.  The Applicant’s violations of Articles 91, 92 and 128 are serious offenses.  As a result of the Applicant’s misconduct, he was subject to a administrative separation board.  The board found the Applicant had committed misconduct due to the commission of a serious offense and that his conducted warranted separation under other then honorable conditions.  Nonetheless, the board recommended the Applicant’s discharge be suspended.  Commander, Navy Personnel Command, directed the Applicant’s under other than honorable conditions discharge by reason of misconduct due to commission of a serious offense be suspended for twelve months contingent on the Applicant’s performance and conduct.  Subsequently, on 20031229, the Applicant was subject to nonjudicial punishment for the commission of a serious offense, a violation of Article 92 of the UCMJ.  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 implies his discharge is inequitable because he did not commit the Article 92 violation adjudicated at NJP on 20031229 which resulted in the revocation of his discharge suspension.  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 wrongly awarded this nonjudicial punishment.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  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), re-issued October 2002, effective 22 Aug 02 until Present, 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, disrespect to a superior noncommissioned or petty officer, Article 92, failure to obey lawful order/regulation or Article 128, assault.

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