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Docket No. ND03-01047

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

 ex-DKSA, USN
Docket No. ND03-01047

Applicant’s Request

The application for discharge review was received on 20030528.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040423.  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: UNDER OTHER THAN 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: 

“From:	M_ A. R_  
	SSN- XXX-XX-XXXX 

Subject:	Statement in Support of Claim  
	Re: M_ R_ vs. US Navy (Assault & Misconduct Discharge)

I enlisted in the Navy in 2001. I was recruited while in 11th grade, my ASVAB
scores were high and the recruiter signed me up while in 11th grade so that when I
graduated from high school I would go directly into the service.

I had moved to New Jersey to live my father and finish high school, when all of this happened. While in school, the school officials said I did not have enough credits to complete high school and wanted to delay my graduation. So instead I came back to St. Thomas, got my GED, then went back to begin my service in the Navy.  

I started in the Navy, passed the Basic Training and went to the Academy in Mississippi to train as a Disbursement Clerk. Afterwards, I was assigned to the USS Saipan. Everything was going well until the 911 Terrorist Attack. The Defense Department or the Navy began background checks on all of their personnel and about 41 Sailors in my ship turned up with problems with their records. I was contacted by the security officer and told there had been some falsification in my records at the time I was recruited (see attachments).  

The issue then, was related to my high school diploma. Apparently there was a
false high school diploma in the recruiting paperwork. At that time I submitted my
original GED Diploma. 

I kept on being questioned on the same issue over and over again, even in front of superior officers and other shipmates. My boss told me I had to be removed from my position until the matter was cleared up. During the investigation, it was found that someone had falsified high school diplomas for recruitment purposes. I was sent back home to New Jersey to contact my recruiting officer and ask him about my records and who had been handling them. The recruiting officer said that there must have been some mishandling. He also said that it wasn’t just me that experienced this problem, that, there was a lot of people going through the same problem mostly because of the new security measures because of the 911 attacks  

After I came back to the ship, I was re-instated in my position. The recruiter gave me some papers to take back to my superior officers and apparently the mishap was resolved. We began maneuvers training, but after a while the security officers began harassing me about being a liar. I was being called into the security office for questioning on the same issue over and over again. The pressure and the harassment got to a point where on one occasion I talked back to the security officer and was then permanently assigned to do mess duty and also do my position as Disbursement Clerk.

On May 25, 2002, I was about to finish my tour of duty at the mess hail and was planning on resting a few hours before going to the watch duty, when the Master of Arms approached me and said I had to go for questioning and to sign some papers at the security office. I asked him if could be done tomorrow because I needed to rest before watch duty. We got into a verbal argument before it escalated into a fistfight. Soon MP’s were brought in and they continuously hit me. They slammed my head against the floor until it split open and I passed out. I was hysterical and was held by officers while being hit. One officer had his knee jammed against my neck while handcuffing me. In the Infirmary, I was given Motrin and sent to the security office where they had me sign all kinds of papers until I realized that I did not understand what was going on and refused to sign, then I was threatened by them that something else would happen if I did not sign all of the papers. They fined me and put me in jail for 30 days, with three days on bread and water. 

After a week in jail, I was transferred to the ship for a series of hearings, to which, I was found guilty, fined and told I had to serve the rest of my sentence. I was taken by to jail and sat there thinking- why me? I couldn’t understand how things escalated to this, first accused of misconduct, negligence and in jail.  

My boss came to visit. He said he knew something like this would happen, because our people always had to go through this kind of treatment. His name was Senior Chief Hodge and he is from the Virgin Islands also. He said he would try to help me and wrote a character statement on my behalf to present to the court.  

After serving my time, I went back to the ship and was deployed, but I had no chance to spend some time on shore leave. It was merely an exchange to a bigger cell. While onboard, arrangements were made for my separation. I was then permanently assigned to mess duty. As soon as we got back they gave me my papers and I was put on a bus and sent home. Later on I received the papers and DD214 with a misconduct discharge.  

I did go to the VA Medical Center in Philadelphia for a check up, because my injuries were never treated properly while on the ship. But then I came back to St. Thomas and did not follow through with treatment and anyway my DD214 was for misconduct and would not allow me to be able for benefits.  

At this time I am confused and feel that all the doors are closing on me. I still
suffer form headaches, neck pain and have some problems with my vision and I am very  
depressed. Please make a just determination on this case. I feel that I did not deserved to be so mistreated by the Navy.  

Over a period of six months now, my mother A_R_ has been trying to retrieve my records the give information as to what happened to me from May 25, 2002 until June 05, 2002 when I was sent away in the bus. All she has received is documents that tell no story and letters without much meaning to them (see attachments).  

I have since tried to receive Unemployment Insurance Benefits, Veterans Compensation, and to apply for work, but to no avail. The only recourse I was given was to re-enter the armed forces. How can I, with so many untreated ailments a bad memory and worst a discharge status that gets me nowhere? I need an adjustment in the wrong things that were done and continue to follow me for no reason at all. To this date, I still don’t know the outcome of that investigation, it seems as if I didn’t matter anymore, because I was out.  

I would like to go to college as I planned with that recruiter who saw so much in
me back when they needed numbers to count on”.

    Respectfully Submitted
		
	(Applicant’s Signature)
	(Applicant’s Address)
	(Applicant’s Social Security Number)

Documentation

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

Copy of DD Form 214 (2)
Copy of High School Diploma
Copy of Fraudulent High School Diploma
Copy of Medical Document dated July 2, 2002
Copy of Training Academic Summary
Copy of Certificate of Completion (Disbursing Clerk”A”School)
Copy of Administrative Leave Request dated June 19, 2002
Letter from Applicant’s mother
Copy of Unemployment Insurance Benefits Claim (4 pages) 

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	010525 - 010625	COG
	Active:   USN 			None

Period of Service Under Review:

Date of Enlistment:  010626		Date of Discharge:  020709

Length of Service (years, months, days):

	Active:    01  00  15
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  57

Highest Rate:  DKSA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA*	Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  None

*No Marks Available for review

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

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

Chronological Listing of Significant Service Events:

020417:	NJP for violation of UCMJ, Article 92: Dereliction of duty.
	Award:  Forfeiture of $521.00 pay per month for 1 month, restriction and extra duty for 45 days (25 days suspended for 6 months).  No indication of appeal in the record. 

020510:	NJP for violation of UCMJ, Article 86: (26 Specifications), Failure to go to appointed place of duty; violation of UCMJ Article 92: (2 Specifications), Failure to obey lawful written order.
	Award:  Confinement on Bread & Water for 3 days.  No indication of appeal in the record.

020520:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of defective enlistment and inductions fraudulent entry into naval service, misconduct due to the commission of a serious offense and misconduct due to pattern of misconduct.

020520:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

020605:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 90: Willful disobedience toward a commissioned officer.  Charge II: violation of the UCMJ, Article 92: (2 Specifications), Failure to obey other lawful order.  Charge III: violation of the UCMJ, Article 117: (3 Specifications), Provoking speeches and gestures.  Charge IV: violation of the UCMJ, Article 128: (2 Specifications), Assault upon a person in the performance of law enforcement duties.  Charge V: violation of the UCMJ, Article 134: (2 Specifications), Communicating a threat. 
	Sentence:  Confinement for 30 days, forfeiture of $694.00 pay per month for 1 month.
	CA action XXXXX:  NOT FOUND IN RECORD.  

020611:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct pattern of misconduct, misconduct due to the commission of a serious offense and defective enlistments and inductions fraudulent entry into naval service. 

020618:	Commander, Amphibious Group TWO authorized the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020709 under other than 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 under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a Sailor.  The Applicant’s service record is marred by award of nonjudicial punishment (NJP) on two separate occasions and summary court-martial thus substantiating the misconduct.  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. An upgrade to honorable 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, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.   At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.  

The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board (NDRB).  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veteran’s benefits and this issue does not serve to provide foundation upon which the Board can grant relief.   

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 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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