Author: CAP
Last saved by: joyce.meeks
Company: NCPB

Docket No. ND05-00824

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

FOR OFFICIAL USE ONLY

ex-AMAN, USN
Docket No. ND05-00824

Applicant’s Request

The application for discharge review was received on 20050419.  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 20051102.  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 and reason for discharge shall not change.  The discharge shall remain General (Under Honorable Conditions) by reason of misconduct due to civil conviction.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the applications:

“My discharge was inequitable because, it was based on one isolated incident after twelve months of service.  After being charged in civilian proceedings, I displayed exemplary service within my unit.  I continued to display exemplary service with little or no impact on my unit during and after the criminal trial proceedings.  I held many licenses for aviation support equipment that aided the production of my facility.

During the criminal proceedings, which lasted over 16 months, I held three supervisory positions as the Shop Tool Petty Officer, Tanning Petty Officer, and also was the Assistant Shift Supervisor of night shift.  All three positions I was assigned after I was charged with the crime.  I had the support of my chain-of-command during the criminal proceeding.  I was also the Acting Shift Supervisor while my supervisor was away in school.  That was also during the time of a complete facility move.

I have also found employment in the Clover Park School District.  I have been employed for the past 19 months and have the respect of all of my supervisors.  I am an active member of my community as the Property Manager for the development where I reside

In conclusion, I feel that it was unfair to receive the discharge that I did.  My current plans are to re-enlist in the Air National Guard if the board grants my request.  I wish to make Chief Master Sergeant in the ANG and retire after 30+ years of great service to my unit, community, and country.”

Documentation

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

Applicant’s DD Form 214
Character Reference ltr from R_ W_, Administrator, “School C” at Clover Park High School, dtd June 8, 2004
DD Form 293, dtd May 6, 2004 (2 pages)
Certificate of Completion, dtd April 25, 2001
Certificate of Completion, dtd May 15, 2001
Certificate of Completion, dtd October 22, 2001
Certificate of Completion, dtd May 22, 2003
Certificate of Training, dtd April 29, 2002
Certificate of Completion, dtd July 12, 2001
Nine pages from Applicant’s service record
Certificate of Completion, dtd June 16, 2000
Letter of Appreciation, dtd April 25, 2001

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	19990723 - 20000621	COG
	               USNR (DEP)	20001031 - 20001226	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20001227		Date of Discharge:  20030619

Length of Service (years, months, days):

	Active:    02  05  23
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:	None
	Confinement:			None

Age at Entry:  18

Years Contracted:  4

Education Level:  12				AFQT:  47

Highest Rate:  AMAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (2)			Behavior:  2.00(2)		OTA:  2.84

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MILPERSMAN, Article 1910-144 (formerly 3630610).

Chronological Listing of Significant Service Events: 

030318:	Civil Conviction:  Superior Court of Washington for Pierce County for violation of reckless burning in the first degree.
Sentence:  Victim assessment of $50.00, criminal filing fee $110.00, fine $500.00, confinement for 5 days, community supervision for 12 months, restitution of $76,516.00.

030403:	Applicant notified of intended recommendation by reason of misconduct-commission of a serious offense and misconduct-civilian conviction.  Applicant notified that the least favorable characterization of service possible is under other than honorable conditions.

030403:	Applicant advised of rights and having chosen not to consult with counsel, elected to appear before an Administrative Discharge Board.

030514:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to commission of a serious offense and misconduct due to a civilian conviction, that such misconduct warranted separation, and recommended discharge with a general (under honorable conditions).  The Board further recommended that, with regards to the misconduct by reason of civilian conviction, the separation be suspended.

030530:	Commanding Officer, Electronic Attack Squadron 129 recommended discharge with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense and misconduct due to a civilian conviction.  Commanding Officer’s comments:  “AMAN B_ (Applicant)’s reprehensible conduct on the evening of 31 December 2001 is a matter of great concern.  The offense translates as arson in the Uniform Code of Military Justice, an offense requiring administrative separation action.  During the board proceedings, AMAN B_ (Applicant) failed to exhibit honor in his continued denial of his actions with respect to the arson.  Unwittingly, his own character witness, during his testimony, confirmed that AMAN B_ (Applicant) was more directly involved in the malicious burning of a high school portable than he had admitted throughout the past year.  AMAN B_ (Applicant)’s failure to accept responsibility of his actions and admit accountability reflects an attitude that is not consistent with Navy Core Values.  The lack of desire to conduct himself in a manner conducive to good order and discipline indicates that AMAN B_ (Applicant) has no future in the naval service.  It is strongly recommended that AMAN B_ (Applicant) be immediately discharged from naval service by reason of misconduct due to commission of a serious offense with a characterization of service of General (Under Honorable Conditions) as recommended by the Administrative Board.”

030609:	Commanding Officer, Naval Air Station Whidbey Island directed the Applicant's discharge with a general (under honorable conditions) by reason of misconduct due to civilian conviction.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030619 by reason misconduct due to civil conviction (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 Applicant contends that his discharge is inequitable because it is based on a single isolated incident in 12 months of total service.  Applicable regulations require that a Sailor’s characterization of service be based upon the member’s total performance of duty and conduct during the current enlistment.  Furthermore, there are circumstances where conduct or performance of duty reflected by a single adverse incident may form the basis of characterization for a Sailor’s overall service.  The incident need not result in formal punishment to be properly used to characterize a Sailor’s service.  The Applicant was convicted by the Superior Court of Washington for Pierce County of reckless burning in the first degree and sentenced to 5 days confinement, $660.00 of assorted fees and fines, 12 months of community supervision, and restitution in the amount of $76,516.00.  According to the evidence of record, the Applicant was responsible for the intentional burning of a portable unit at the local high school.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects a malicious disregard for the welfare and safety of other members of the community.  Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service.  Relief is not warranted.

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 could 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.  The Board received and considered all of the Applicant’s submissions, including his letter of recommendation and Navy training certificates and service records.  After careful consideration, the Board concluded the Applicant’s post-service achievements have been insufficient to mitigate his misconduct while in the Naval service.  Relief denied.

The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces and this issue does not serve to provide a foundation upon which the Board can grant relief.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

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 any additional 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.  The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 02 until Present, Article 1910-144 (previously 3630610), Separation by Reason of Misconduct - Civilian Conviction.

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 26, arson.

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.

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