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Docket No. ND05-00909

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

FOR OFFICIAL USE ONLY

 ex-AD3, USN
Docket No. ND05-00909

Applicant’s Request

The application for discharge review was received on 20050502.  The Applicant requests that his 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 20051206.  After a thorough review of all 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 characterization of the discharge shall not change.  The discharge shall remain General (Under 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: 

“AD2 V_ testified that he sent me home.  He had supervisor authority to do so.  Only when I elected to be heard at a impartial court’s martial, that’s when my commander DECidEd to take ACTiON TOWARDS ADMiNiSTATiON separation.
I spoke with Lt. L_, a jag officer at Pearl Harbor Legal Assistance Office, and she stated that she once got a sailor re-instated back iNtO the Navy after command threw him out for beiNg a whole week U.A. The sailor said that he was scared of some Chiefs that were after him professionally.  In my case I felt the same way about the Chiefs in my command and I was only accused of a total of six hours unauthorized absence.  First incident I was 1 hour late because of a failed alarm clock “which does happen”.  Second incident I was 1 hour late because I mixed up my days of an early traiNing day where we was supposed to be to work one hour early for traiNiNg.  Last incident was the four hour U.A. where I was accused of goiNg home on my own, which has been testified to be not true.  My U.A.s were through a span of almost three years.  I was a target by some power greedy Chiefs and slammed at the last second out the door just tryiNg to transfer to my next command.”

Documentation

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

Applicant’s DD Form 214 (2)
Applicant’s letter, dtd May 14, 2004 (2 pages) 
Applicant’s letter, undtd (2 pages)
Letter from Applicant’s attorney to Commander and Judge Advocate, dtd April 27, 2004 (2 pages), (2 copies)
Letter from Naval Personnel Command to United States Congressman G_, dtd June 30, 2004, (2 pages)
Cover letter from Veterans Affairs Office of Lexington County, dtd October 24, 2005
Applicant’s letter, dtd October 24, 2005, (2 pages)
Applicant’s letter, dtd October 14, 2005,
Character reference letter from Applicant’s wife, C_ L. S_, dtd October 13, 2005, (2 pages)
Character reference letter from Applicant’s father, W_ S_ Jr., undtd
Letter from Campus Dean, Strayer University, dtd October 18, 2005
Transcript evaluation worksheet from Strayer University
Transcript from John Jay College of Criminal Justice, stamped August 25, 2005
Sailor/Marine, American Council on Education registry transcript, printed August 4, 2005 (4 pages)
Letter from Commanding Officer to Applicant’s attorney, dtd May 6, 2004 (unserialized, unsigned)
Letter from United States Senator H_ R. C_, dtd June 7, 2004
Letter from United States Senator G_ A_, dtd June 16, 2004
Letter from United States Congressman V_ G_ Jr., dtd June 8, 2004
Letter from United States Congressman V_ G_ Jr., dtd June 8, 2004 (unsigned)
Letter from United States Congressman G_ W. M_, dtd June 16, 2004
Letter from United States Congressman G_ W. M_, dtd June 16, 2004
Authority to assume the title and wear the uniform or a Chird Class Petty Officer, dtd December 15, 2000
Adverse Performance Evaluation Report, dtd June 25, 2001
Performance information memorandum, dtd July 30, 1999
Adverse Performance Evaluation Report, dtd May 27, 2004
Counseling record, dtd December 10, 2002 (2 pages)
Counseling record, dtd November 30, 2001 (2 pages)
Evaluation report, period of June 16, 2002 – June 15, 2003 (front page)
Evaluation report, period of July 16, 2000 – June 15, 2001 (2 pages)
Counseling record, dtd December 15, 2003 (2 pages)
Evaluation report, period of March 01, 2002 – June 15, 2002 (2 pages)
Evaluation report, signed July 12, 2003 (back page)
Evaluation report, period of June 16, 2001 – February 28, 2002 (front page)
Evaluation report, period of February 23, 1999 – July 15, 1999 (2 pages)
Evaluation report, period of July 16, 1999 – July 15, 2000 (2 pages)
Petty Officer Training Course, certificate dtd December 14, 2000
P-3 Power Plant & Related Systems Intial Course, certificate dtd July 29, 1999
Fundamental Hoist Operation, certificate dtd November 05, 1999

PART II - SUMMARY OF SERVICE

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

	Inactive:  USA (DEP)	199706XX – 199707XX	COG
	                USNR (DEP)	19980925 - 19981207	COG
	Active:     None

Period of Service Under Review:

Date of Enlistment:  19981208		Date of Discharge:  20040615

Length of Service (years, months, days):

	Active:    05 06 08
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  30

Years Contracted:  4 (33 month extension)

Education Level:  12				AFQT:  56

Highest Rate:  AD3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.8 (6)	Behavior:  2.5 (6)			OTA:  2.64 (5)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Meritorious Unit Commendation Medal (2); Navy Unit Commendation Medal; Battle “E” Award, National Defense Service Medal; Armed Forces Expeditionary Medal; Sea Service Deployment Ribbon.

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

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

Chronological Listing of Significant Service Events: 

980925:	Pre-service waivers for Army DEP discharge and THC use granted.

010315:	NJP for Violations of UCMJ 86 (unauthorized absence) and Article 92 (failure to obey order).  [Extracted from evaluation dated 010625.]

040318:	Retention Warning.  No further information found in service record.  [Extracted from Commanding Officer’s letter dated 040506.]

040415:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct - commission of a serious offense.  Applicant refused to sign.

040504:	Applicant advised of rights and having elected to consult with counsel, elected the right to a General Courts Martial convening authority review, to submit a written statement, and the right to obtain copies of the documents used to support the basis for the separation.

040506:	Commanding Officer, Patrol Squadron 9 recommended to Chief of Naval Personnel to discharge AD3 S_ (Applicant) with a general (under honorable conditions) by reason of misconduct-commission of a serious offense.  Commanding Officer’s comments:  “Aviation Machinist Mate Third Class Petty Office S_’s (Applicant) criminal acts, which form the basis of his separation, are part of an ongoing course of conduct that is unacceptable for any service member to engage in. AD3 S_ (Applicant) has shown a continued defiance towards authority through repeated unauthorized absences and a failure to properly respond to direction. He has been counseled about his behavior on numerous occasions.  Unfortunately, he has shown, through his reluctance to change his performance and attitude, that he is unwilling to accept positive mentorship and corrective measures. Accordingly, I have determined that the offenses committed were serious, that there is a strong likelihood of recurrence, and that AD3 S_’s (Applicant) military record and conduct demonstrate he has little potential for further useful service. I believe that a discharge under General conditions using notification procedures is in the best interest of all parties involved. A general discharge will allow AD3 S_ (Applicant) to enter the civilian world retaining all veteran benefits and free from the negative stigma associated with an Other Than Honorable discharge while allowing the command to quickly and decisively resolve this matter as we prepare to deploy. I strongly recommend AD3 S_ (Applicant) to be separated immediately from the Navy with a General discharge.”

040528:	COMPATRECONGRU Norfolk, VA directed the Applicant's discharge with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense.

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 20040615 by reason of misconduct due to commission of a serious offense (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 Board presumed regularity in the conduct of governmental affairs (E).

When the service of a member of the U.S. Navy has met the standard of acceptable conduct and performance, it is appropriate to characterize that service as honorable.  A General (under 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.  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 for the characterization of a Sailor’s overall service.  The Applicant’s service was marred by a nonjudicial punishment for violations of UCMJ Article 86 (unauthorized absence) and Article 92 (failure to obey).  As defined by reference (B), a violation of Article 92 is considered the commission of a serious offense.  This type of misconduct is punishable by a punitive discharge if convicted by courts-martial.  There is credible evidence in the record that the Applicant committed a serious offense.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Separation under these conditions generally results in a less than honorable characterization.  Relief denied.

The Applicant states that his command chiefs were out to get him.  The Applicant bears the burden of presenting substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support his contention of wrongdoing by the Applicant’s Chiefs, Commanding Officer or anyone else in his chain of command.  The record does document his NJP for a violation of UCMJ Article 92 (failure to obey) and two adverse evaluations documenting the Applicant’s history of poor work performance and lack of respect.  The NDRB found no impropriety or inequity in the Applicant's service characterization based upon this issue.  Relief denied.

In the absence of a complete service record, the Board presumed regularity of governmental affairs.  The Board presumed that the Applicant’s discharge was conducted in accordance with that described in reference “A”.  If the Applicant feels his discharge was administratively flawed he bears the burden of establishing his issues through the presentation of substantial and credible evidence.

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.  The Applicant provided two character reference letters and educational documentation consisting of transcripts from Strayer University, John Jay College of Criminal Justice as well as worksheets, letters and registration documents for the Board’s consideration.  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 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), re-issued October 2002, effective 22 Aug 02 until 25 April 2005, 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 92 (failure to obey an order or regulation).

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