Author: CAP
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Docket No. ND05-01044

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

FOR OFFICIAL USE ONLY

 ex-BMSN, USN
Docket No. ND05-01044

Applicant’s Request

The application for discharge review was received on 20050608.  The Applicant requests that his characterization of service received at the time of discharge be changed to honorable.  The Applicant requested a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area.  The Applicant did not designate a representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.  Subsequent to the application, the Applicant obtained representation by the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060112.  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:

“ON OR ABOUT 2005 MAY 01 B_ E_ WALKED INTO THE NAVY RECRUITING STATION JEFFERSON CITY, MO.  SHE WAS NOT QUALIFIED TO JOIN CAUSE OF BEING OUT OF HEIGHT, WEIGHT STANDARD.  SHE DID TRY TO LOSE THE WEIGHT, BUT LOST INTEREST.  I THEN DECIDED TO ASK HER FATHER IF I COULD TAKE HER OUT.  HE WAS FINE WITH THAT.  MY IMMEDIATE CHAIN OF COMMAND FOUND OUT THAT WE WERE DATING ABOUT 2-3 WEEKS LATER.  THE RECRUITER IN CHARGE INFORMED THE UPPER CHAIN OF COMMAND AND NOW MY CAREER IS IN JEOPARDY FOR FRATERNIZATION WITH A NAVY PROSPECT.  THE RECRUITER IN CHARGE SAID THAT I HAD TO GO TO CAPTAINS MAST.  HE ALSO RECOMMENDED THAT I NOT GIVE DETAILS OF MY RELATIONSHIP.  HE WANTED ME TO LIE.  AT CAPTAIN’S MAST I DID AND STATED THAT WE HAD ONLY BEEN OUT A COUPLE OF TIMES, WHEN IN FACT, WE HAD BEEN OUT ALOT MORE, AND WAS IN A SERIOUS RELATIONSHIP.  I WAS TOLD THAT I COULD NOT LONGER SEE HER DURING CAPTAIN’S MAST AND A SUSPENDED BUST FOR 6 MONTHS AND FINED $1,000 FOR 2 MONTHS.  BECAUSE OF THE SERIOUSNESS OF OUR RELATIONSHIP, I MADE A MORAL DECISION AND CONTINUED TO SEE HER.  ON OR ABOUT 2005 NOV 27, 2 OF THE RECRUITERS I WORKED WITH STOPPED BY MY RESIDENCE.  I DID NOT ANSWER BECAUSE I WAS IN MY SKIIVIES.  I WENT BACK TO WORK THE FOLLOWING MONDAY, AND DISCOVERED A MEMO WRITTEN TO THE CHAIN OF COMMAND, THAT THEY SAW B_ E_ IN MY RESIDENCE.  I PRESENTED PROOF THAT THEY WERE LYING.  A TIME CARD, A NOTARIZED STATEMENT FROM BOSS, AND TIME CARD WITH TIME/DATE STAMP.  THE COMMAND SAID THAT THEY BELIEVE THEM OVER ME, BECAUSE THEY OUT RANK ME.  I WAS BUSTED FROM E-5 TO E-3 AND DISCHARGED.  ALL EVIDENCE WAS GIVEN TO THE COMMANDING OFFICER OF NRD ST LOUIS.”

The Applicant’s representative submitted no issues.

Documentation

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

Applicant’s DD Form 214
Letter to U. S. Senator T_ C_, dtd April 8, 2005 (2 pages)
Letter to U. S. Senator T_ C_’s VA/Military Constituent Representative, undtd (2 pages)
Fax cover sheet from NC1 (SW/AW) E_ M_, dtd November 29, 2004
Memorandum from NRS Jefferson City to NRD St. Louis, dtd November 29, 2004, unsigned
Military Acknowledgement/Waiver of Rights, dtd November 30, 2004 (2 pages)
Voluntary statement from Applicant, dtd November 30, 2004 (4 pages)
Privacy Act Statement of C_ D. M_, dtd April 12, 2003 (2 pages)
Voluntary statement of C_ D. M_, dtd December 03, 2004 (2 pages)
Privacy Act Statement of A_ L. M_, dtd December 03, 2004 (2 pages)
Voluntary statement of A_ L. M_, dtd December 03, 2004 (2 pages)
Loan agreement executed by B_ E_ at 12:43, November 27, 2004
Privacy Act Statement of O_ J_ A_, dtd January 07, 2005 (2 pages)
Voluntary statement of O_ J_ A_, dtd January 07, 2005
Privacy Act Statement of T_ C_, dtd December 03, 2004 (2 pages)
Privacy Act Statement of J_ A_ O_, dtd December 03, 2004 (2 pages)
Voluntary statement of J_ A_ O_, dtd December 03, 2004
Missouri Title Loans, Inc, bi-weekly time sheet for B_ E_ for the period November 21, 2004 through December 04, 2004
Statement of B_ E_, undtd
Statement of M_ D. E_ HMC USN Ret., undtd
Statement of M_ T_-S_ STG2, undtd
Statement of G_ S_ AM1, undtd
Call log of Applicant (20 pages)
Letter from Applicant, dtd June 28, 2005 (2)
Letter from Applicant, dtd August 18, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	19981028 - 19981118	COG
	Active:   USN 	19981119 - 20021001	HON

Period of Service Under Review:

Date of Enlistment:  20021002		Date of Discharge:  20050225

Length of Service (years, months, days):

	Active:    02 04 24 	(Total Active Duty Time: 06 03 07)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  26

Years Contracted:  4

Education Level:  10				AFQT:  62

Highest Rate:  BM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0 (5)	Behavior:  2.8 (5)	 OTA:  3.17 (5)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Sea Service Deployment Ribbon (2), Armed Forces Expeditionary Medal (2), Navy “E” Ribbon (2), Flag Letter of Commendation (2), Good Conduct Award, Meritorious Unit Commendation, Humanitarian Service Medal, Navy and Marine Corps Achievement Medal (2), Navy Recruiting Service 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: 

021002:	Reenlisted this date for a term of 4 years.

040720:	NJP for a violation of the UCMJ, Article 92 (failure to obey order or regulation).
	Award:  Forfeiture of $1000 per month for 2 months, reduction to E-4.  Reduction suspended for 6 months.  No indication of appeal in record.

050112:	Reduction in pay grade awarded at NJP on July 20, 2004 vacated due to continued misconduct.

050112:	NJP for violations of the UCMJ, Article 92 (failure to obey lawful general order or regulation, 2 specifications) and Article 90 (willfully disobeying a superior commissioned officer).
	Award:  Forfeiture of $500 per month for 2 months, reduction to E-3.  

050120:	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.

050120:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

050214:	Commanding Officer, Navy Recruiting District St. Louis, authorized the Applicant's discharge with a general (under honorable conditions) by reason of misconduct - commission of a serious offense.

050311:	Commanding Officer, Navy Recruiting District St. Louis, informed Commander Naval Personnel Command of the administrative separation of BMSN B_ (Applicant) by reason of misconduct - commission of a serious offense.  Commanding Officer’s comments:  “Seaman B_’s (Applicant) inability to obey Commander, Navy Recruiting Command written orders/instructions and my verbal orders; on two different occasions, are inexcusable.  Sailors do not get to choose which orders and rules to obey.  Due to Seaman B_’s (Applicant) failure to obey orders and the seriousness of his offenses, I recommend him for administrative processing.  He is no longer compatible with naval service.”

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050225 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 all available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  

To be legally sufficient, a finding of misconduct due to the commission of a serious offense requires only a showing (by a preponderance of the evidence) that misconduct which would warrant a punitive discharge if tried by special or general court-martial, has occurred.  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 outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by two nonjudicial punishments (NJP) for violations of the UCMJ, Article 92 (failure to obey an order or regulation, 3 specifications) and Article 90 (willfully disobeying a superior commissioned officer).  Reference (A) defines violations of Articles 92 (failure to obey and order or regulation) and 90 (willfully disobey a superior commissioned officer) as the commission of a serious offense, the misconduct for which the Applicant was discharged.  There is credible evidence in the record that the Applicant committed serious offenses.  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.  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.  Separations under these conditions generally result in a less than honorable characterization.  Relief denied.

The Applicant contends he is innocent of the charges that resulted in his NJP on January 12, 2005 and eventual discharge from the U. S. Navy.  The Applicant bears the burden of presenting substantial and credible evidence to support his issue.  He submitted two letters to Senator T_ C_, nine letters, voluntary statements, and documentation that B_ E_ was at her place of employment at the time of the alleged incident.  However, the Applicant admitted his decision to disobey an order and disobey a superior commissioned office by continuing his relationship with B_ E_.  Furthermore, both B_ E_ and her father verified the ongoing relationship in their statements and J_ A_ O_ provided 2 additional statements documenting the ongoing relationship between the Applicant and the lady whom he was ordered to stop seeing.  The record clearly reflects his willful misconduct, demonstrating he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  This issue is without merit, relief 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 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 violations of the UCMJ, Article 92 (failure to obey a lawful general order or regulation) and Article 90 (willfully disobeying a superior commissioned officer).

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