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Docket No. ND03-00309

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

 ex-ASAN, USN
Docket No. ND03-00309

Applicant’s Request

The application for discharge review was received on 20021211.  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 listed the Disabled American Veterans as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20031121.  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)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

Issue 1:  “This summary is intended to present information as why my discharge and discharge rating was not warranted.  My comments and examples will show I was found guilty and discharged based on discrimination, favoritism, and situation cover up.  I followed orders and tried to grow professionally at my job.  Examples are also provided to describe how my discharge was the result of an organized group protecting themselves.  This group found ways to rid them selves of anyone that might report the internal problems and how preferential treatment was applied to certain individuals.
On the charge of falsifying records (Gun decking Preventative Maintenance).
A.  I was assigned Preventative Maintenance of Tie Down Chains in a chain storage locker by my First Class (AS1 R_).  I went to assigned storage lockers to start assignment.  I checked the three boxes that were listed to hold assigned chains.  I then reported back to AS1 R_ that the chains were not advisable out of the boxes and located on flight deck and in use.  I was then instructed by AS1 R_ to sign off maintenance and did as instructed.  No reason was given, and I followed my supervisor’s instructions.  During my time in this division I observed all levels of rank in my division signing off Preventative Maintenance assignments as completed, without doing the maintenance.  AS1 E_ was also the Senior Petty Officer of the persons I observed Gun decking their assignments at different times.  Other personnel in other divisions during conversations talked about my division (LM-4 Aviation Support Equipment) and its poor maintenance and record keeping practices (more in Paragraph C).  After reporting completion of maintenance, I was told to take a break, which also included lunch.  I returned after lunch, being gone for the authorized 1 hour and 15 minutes.
B.  I followed my supervisor’s instruction to Gun deck the paper work. Within 2 hours AS1 E_ (Division Leading Petty Officer) assigned CDI (Collateral Duty Inspector (an AS2)) to check Preventative Maintenance.  CDI reported the chains were not in box. I was questioned about chain location, maintenance requirements, maintenance completion and sign off of completion.  I was then put on report for Gun decking and unauthorized absence.  (1 count of UA because I was late that morning for quarters.  It was common for other sailors to be late because USS Kennedy did not have a wake up call book or other system in place to insure waking on time.  Revile was played over the 1MC announcing system, but could not be depended on as often the system did not work.  Several other sailors from my same living compartment had previously been late and no counseling, guidance, reveille or call book was provided or installed.
A.  Here is example of poor leadership and discrimination.  AK C_ was in trouble often for drinking, UA and leaving assigned station without proper relief for hour’s on end.  AK C_ was never reported as written up or sent up to captain’s mast.  I say never written up, because at daily morning quarters the ships plan of the day was read.  In the plan of the day those persons assigned Captains Mast, charges and Mast results were listed.  AK C_ was not discharged or reduced in rate for flagrant disregard for orders, drunk on watch, unauthorized absence or misconduct.  Ship wide it was known that AK C_ was protected because of a relative who was in charge of AIMD.  I felt that Master Chief C_ was the protection that kept AK C_ from being put on report.  It seemed that AK C_ was shifted from division to division as each time he was in trouble to protect him.  Most people I worked with and around did not want him working with them.  I have also seen blatant Gun decking when I was assigned to the trouble-shooting shack.  For example, on one occasion I was in the trouble shooting shack when, two second classes (one of which was a CDI inspector) came in with three third’s.  They had with them that days, Daily PMS assignment sheet.  They could not have completed the assigned PMS as it was just after morning quarters and shortly after they had received PMS assignments.  They were talking to each other about which assignments to sign off.  After they decided which assignments to sign off they each took turns at the keyboard signing off the PMS that they could not have had time to complete.

C.  Other supporting information to exhibit poor leadership and discrimination.  Shipmates such as AS2 J_, AS3 M_, other’s and myself discussed that we wanted to speak out about the Gun decking that was happening.  After we discussed that we should report the problem.  Each one of us had a story as to how persons that reported other hidden problems had in turn been pointed out, harassed and had been on the receiving end of repercussions and discrimination.  None of us wanted to set our self up for problems.  So in the end none of us reported the problem.  I have other names of persons outside my division that observed the problems and I discussed this with.  Such as AT2 O_, AT2 D_, AT3 R_ and many others.  After talking to them before and after my captain’s mast that they suggested that I should talk to the CMC (Command Master Chief) about some of the Gun decking problems.  I was unable to talk to the CMC until after the captain’s mast.  This was due to the change of command.  When I was able to talk to the CMC he said that he would make mention of it.  Another example of captain’s mast inequities, for gun decking safety related PMS on flight deck catapults, is by a second class.  He did not get kicked out, was only reduced in rank.

D.  Yet another example of poor leadership would include.  After I was assigned to a task and even when I was on that job.  Third class and Second class Petty Officers would reassign me to other tasks.  They would indicate they had talked to the Petty Officer that had originally assigned me.  So I would get chewed out, an entry made on my division record when I left present assignment to work on the new assignment.  This kind of situation was used to set me up and be put on report later.  All because I followed the last order of my senior.

E.  Paragraphs A-E are provided to explain what the situation on the USS Kennedy was during my assignment.  I served my country, Navy and ship for over two years.  My record shows community involvement, advancement to E-4 (Petty Officer Third Class).  What my record does not show.  After my captain mast I was assigned to a different area.  While waiting for discharge I inventoried and straightened out a tool room.  Corrected and put a check out system back in place.  That division was impressed enough that they recommended me for an award.  I was unable to obtain the name of who stopped the award, but was informed that it was outside my present division assignment.

F.  Just to provide you another example of how processing was in disarray or to prevent my access to records.  I requested a copy of medical and service records at each stage of discharge processing.  I was not provided a copy by the USS Kennedy.  Or the processing centers of the Naval Station Mayport, Navy JAG, or Naval Air Station Jacksonville personnel offices.  It has now been over 7 months since my release.  I have tried to apply for Naval Reserve, Army National Guard and Air Force Reserve.  Each Reserve, National Guard and Arizona Department of Veteran Services has tried to request a copy of Service Record.  The Veterans Administration has tried to request a copy of service and medical records.  To date none of these nor I have been able to obtain a copy of service record.

Summation
I, I_ G_ (Applicant) served my country, Navy and the U.S.S. Kennedy with professionalism for over two years.  I enjoyed my job and felt I contributed professional results.  The Navy could have been a career for me, but with my present service discharge rating and reenlistment code I will never know.  My record shows community involvement and advancement to E-4 (Petty Officer Third Class).
After Captains Mast and pending my discharge, I maintained a sustained professional attitude and moral.

I have had problems since discharge from the military.  Service records are not available and I have been unable to enlist with the Reserve or National Guard.  Also I have lost a job because of a military injury.  Only recently have I been approved to be seen VA for medical benefits.  Also educational VA benefits have been turned down because of the discharge rating.  I also lost my veteran hiring preference.  Since discharge I have not been in trouble with the law, started school and become active in my local Church and Boy Scouts.  This summer I have completed 6 credits at Yavapai College, I have also been rehired at the college.  This semester I am attending college with the goal to become a Medical X-ray technician and make a career for my life.

Based on the hurry up job of discharge, discrimination, favoritism, and cover up of problems my discharge rating is not a reasonable result.  This includes a certain group needed me gone before I could report them.  In all, this is why it is right and reasonable that my discharge be upgraded to Honorable.”

Additional issues submitted by Applicant’s counsel/representative (DISABLED AMERICAN VETERANS):

“Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current General Under Honorable discharge to that of Honorable.

The FSM served on active service from September 25, 1999 to February 16, 2002 at which time he was discharged due to misconduct. 

The FSM contends the current discharge is improper because it was used to cover up the maintenance fraud, that the Captains’ Mast was not properly executed, and there were false charges by his peers.

This creates a need for a review of the application of the standard, for the Board to determine that the Applicant’s discharge was improper. The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted. See, SECNAVIST 5420.174 (c), Par. (f) (1).

In continuance, the FSM goes onto explain that his active duty should have been a career. That with his promotion and advancement to E-4 and his community involvement he would have served on a long term basis. Since his discharge he has enlisted in the National Guard, has been approved for both educational and medical benefits through the Department of Veterans Affairs. Although he ha lost his employment, he has been re-hired and is attending college making a new career. 

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the Applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174C.

Under the premises of equitable relief, we believe the Board can change the narrative reason to Convenience Of The Government, removing the notation of conduct. As to the request of the change of discharge to reflect a General discharge we leave that to a determination by the Board.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the Applicant.

Respectfully,”

Documentation

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

Supporting information by J_ I_ G_ (SW) USN Retired
E-mail, dated February 8, 2002
E-mail, dated March 26, 2002
Applicant’s DD Form 214
Letter from Pastor of Visitation, American Evangelical Lutheran Church, dated September 20, 2002

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	990925 - 991228	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  991229		Date of Discharge:  020216

Length of Service (years, months, days):

	Active:    02  01  18
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  47

Highest Rate:  ASAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.33 (3)	Behavior:  2.00 (3)		OTA:  2.72

Military Decorations:  None

Unit/Campaign/Service Awards:  MUC

Days of Unauthorized Absence:  None

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

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

Chronological Listing of Significant Service Events:

020128:	NJP for violation of UCMJ, Article 86 (2 specs): 1 Fail to go at prescribed time to appointed place of duty on 0545, 020119, to wit: divisional muster, 2 Fail to go at prescribed time to appointed place of duty on 0700, 020120, to wit: duty section muster, violation of UCMJ, Article 92 (6 specs): 1 Derelict in performance of duty on 020119, to wit: failed to properly perform 26 week inspection on LK6SLP truck forklift, 2 Derelict in performance of duty on 020119, to wit: failed to properly perform 91 day inspection on aircraft tow bar, 3 Derelict in performance of duty on 020119, to wit: failed to properly perform 30 day inspection on aircraft tie down chain #12, 4 Derelict in performance of duty on 020119, to wit: failed to properly perform 30 day inspection on aircraft tire down chain #09, 5 Derelict in performance of duty on 020119, to wit: failed to properly performed 13 week inspection on ejection seat dolly, 6 Derelict in performance of duty on 020119, to wit: failed to properly perform 26 week inspection on LK6SLP truck forklift, violation of UCMJ, Article 107 (6 specs): 1 With intent to deceive, sign an official record on 020119, to wit: completed 26 week inspection on LK6SLP truck forklift  2 With intent to deceive, sign an official record on 020119, to wit: completed 91 days inspection on aircraft tow bar, 3 With intent to deceive, sign an official record on 020119, to wit: completed 30 day inspection on tie down chain #12, 4 With intent to deceive, sign an official record on 020119, to wit: completed 30 day inspection on tie down chain #09, 5 With intent to deceive, sign an official record on 020119, to wit: completed 13 week inspection ejection seat dolly, 6 With intent to deceive, sign an official record on 020119, to wit: completed 4 week inspection on LK6SLP truck forklift.
	Award: Forfeiture of $798 per month for 2 months, restriction and extra duty for 45 days, reduction to ASAN.  No indication of appeal in the record.

020130:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

020130:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

020208:	Commanding Officer directed discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.  Commanding Officer’s comments (verbatim):  [At a recent NJP proceeding, ASAN G_ (Applicant) pled to and was found guilty of “gundecking” – he admitted to failing to perform required inspections of various pieces of aircraft maintenance equipment and to falsely completing official documents indicating that such inspections were accomplished.  His behavior demonstrates a total disregard of naval rules and regulations.  His actions are unacceptable and adversely affect the safety and work performance of his shipmates.  Accordingly, I directed his separation from the naval service for misconduct due to commission of a serious offense.  However, AN G_ has been an asset to his division and since he has expressed a great deal of remorse for recent behavior, I further directed that he be given a general (under honorable conditions) discharge.]

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020216 with a characterization of general (under honorable conditions) for misconduct due to commission of a serious offense (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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).

Issue 1:  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. A characterization of service of general (under honorable conditions) is warranted when the service member’s conduct constitutes a significant departure from that expected of a Sailor.  The record is void of any evidence that the Applicant was a victim of retribution, that he should not be held accountable for his actions or that he was treated unfairly.  The Applicant’s service record is marred by an award of non-judicial punishment (NJP) for offenses to which he pled guilty.  The Applicant’s summary of service clearly reflects the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, and demonstrated he was unsuitable for further service.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing medical, employment or reenlistment opportunities as requested in the issue.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.   However, neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  A request for waiver is normally done during the processing of a formal application for enlistment through a recruiter.  An upgrade to honorable conditions would be inappropriate.  Relief denied.

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, will change the reason for discharge if such a change is warranted.  The summary of service clearly documents that misconduct due to commission of a serious offense was the reason the Applicant was discharged.  No other Narrative Reason for Separation could more clearly describe why the he was discharged.  To change the Narrative Reason for Separation would be inappropriate.  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 the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  Evidence of continuing educational pursuits, a positive employment record, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.   The Board appreciates the Applicant’s efforts to improve his life and encourages him to continue his education.  However, at this time the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.  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 additional documentation to support any claims of post-service accomplishments 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 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.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 "afls14.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
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