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

FOR OFFICIAL USE ONLY

ex-GSMFN, USN
Docket No. ND06-00485

Applicant’s Request

The application for discharge review was received on 20060214.  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 20061206.  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 a pattern of misconduct.

The NDRB did note administrative error(s) on the original DD Form 214.  Block 12a, Record of Service, Date Entered AD This Period, should read:  “97  07  28,” and Block 12c, Net Active Service This Period, should read:  “07  07  06,” Block 18, Remarks, should contain the following statement:  “CONTINUOUS HONORABLE ACTIVE DUTY FROM 19970728 UNTIL 20010422,” Block 24, Character of Service, should read:  “UNDER OTHER THAN HONORABLE CONDITIONS,” Block 29, Dates of Time Lost During This Period, should read:  “20041208-20050308 (90).”  The Commander, Navy Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

Equity:  Misconduct did not warrant an under other than honorable conditions characterization.

Documentation

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

Applicant’s DD Form 214  (Member 4)
10 pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19970227 - 19970727	COG
	Active:    USN	19970728 – 20010422	HON

Period of Service Under Review:

Date of Enlistment:  20010423		Date of Discharge:  20050603

Length of Service (years, months, days):

	Active:    04  01  11  (Does not include lost time)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  90 days
	Confinement:		  None

Age at Entry:  25

Years Contracted:  6

Education Level:  12				AFQT:  69

Highest Rate:  GSM2

Final Enlisted Performance Evaluation Averages* (number of marks):

Performance:  4.2 (5)		Behavior:  3.2 (5)		OTA:  3.60 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Navy Good Conduct Medal, Navy Sea Service Deployment Ribbon (2nd), Armed Forces Expeditionary Medal, Fleet Marine Force Ribbon, Coast Guard Meritorious Unit Commendation, National Defense Service Medal, Letter of Commendation, Enlisted Surface Warfare Qualified, Enlisted Aviation Warfare Qualified

* Includes evaluations submitted by Applicant

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority:  MILPERSMAN, Article 1910-140 (formerly 3630600).

Chronological Listing of Significant Service Events: 

010423:	Reenlisted this date for a term of 6 years. 

041208:	To unauthorized absence at 1445 on 041208.

050108:	Declared deserter this date.

050308:	From unauthorized absence at 2110 on 050308 (apprehended).

050314:	NJP for violation of UCMJ, Article 85: Desertion. 
	Award:  Forfeiture of $250.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-4.  No indication of appeal in the record.

050506:	NJP for violation of UCMJ, Article 86 (3 Specs):  Absence without leave.
Award:  Forfeiture of $821.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.

050520:	Separation physical completed this date.

050603:	DD Form 214: Applicant discharged Under Other Than Honorable Conditions by reason of misconduct due to pattern of misconduct, Separation Code HKA.

Service Record did not contain the Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050603 by reason of misconduct due to a pattern of misconduct (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).

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.  In the Applicant’s case, in the absence of a complete discharge package and without credible and substantial evidence to refute the Board’s presumption, the Board invoked the presumption of regularity.  Specifically, the Board presumed that the Applicant met the criteria for discharge by reason of misconduct due to a pattern of misconduct, that the Applicant was properly notified of his Commanding Officer’s intent to administratively process the Applicant for separation, that the Applicant was afforded all rights which he elected at notification and that the Applicant’s discharge was directed by proper authority.  

The Applicant implies that his discharge was inequitable because he deserved an honorable discharge after over seven years of service.  The Board did note the Applicant’s previous honorable service, which ended on 20010422.  However, the Board found the Applicant’s issue without merit.  Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. 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 for violations of Articles 85 and 86 of the UCMJ.  The Applicant’s violation of Article 85, desertion, is 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 following is provided for the edification of the Applicant.  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 after a review of Applicant’s case.  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.  As of this time, the Applicant has not provided any post-service documentation for consideration.  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), Change 11, effective 
26 April 2005 until Present, Article 1910-140, SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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 85, desertion.

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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