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

Docket No. ND06-00164

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

FOR OFFICIAL USE ONLY

 ex-SK1, USN
Docket No. ND06-00164

Applicant’s Request

The application for discharge review was received on 20051103.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions).  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 20060926.  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 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 and/or attached document/letter: 

“MilpERSMAN 1910-710.
See Supporting Document #4
DD Form 214-215
DD From 149
Transcript
CHARACTER REFERENCE, 2-10-05
LETTER FROM K_ M_ C_. ESQ. 2-05-05”

“Dear DRB:

The following issues are the reasons I believe my discharge should be overturned to a full reinstatement.  If you disagree, please explain in detail why you disagree.  The presumption of regularity that might normally permit you to assume that the service acted correctly in characterizing my service as less than honorable does not apply to my case because of the evidence I am submitting.

•	Under current standards, I would not receive the type of discharge I did.
•	My average conduct and efficiency rating/behavior and proficiency marks were good.
•	I received awards.
•	I received letters of recommendations.
•	My record of promotions showed I was generally a good service member.
•	There were other acts of merit.
•	I was so close to finishing my tour that it was unfair to give me a bad discharge.
•	I have been a good citizen since discharge.
•	My record of NJPs/Article 15s indicates only a minor offense.
•	My record of convictions by civil authorities while I was in service indicates only a minor offense.
•	The punishment I got was too severe compared with today’s standards.
•	The punishment I got was too harsh-it was much worse than most people got for the same offense.
•	My enlistment option was not satisfied.

I am requesting a thorough review of my case and a change in my code from RE-4 to RE-1, retro pay, 79 days leave and military benefits fully reinstated as soon as possible.”

“TO:  D.R.B.
RE:  Full Reinstatement into United States Navy

On April 28, 2005 I was discharged from the United States Navy for misconduct based on a civilian conviction.  My discharge was incorrectly coded Other Than Honorable.

According to Separation by Reason of Misconduct-Civilian Conviction MILPERSMAN 1910-512 the characterization of my separation was inappropriate.  The purpose for the administrative process was to determine if misconduct had been committed, whether there was potential future based on my years of service (17 years) and if the misconduct was severe enough to be separated from the Navy.

The evidence presented clearly indicates misconduct.  However, the Board failed to give proper weight to my case regarding the retention in the Naval Service.  The evidence submitted would have potentially granted me relief from the Appellate Court; which would have enabled me to carry out my duties until completion of my term (three years).  Instead I was separated from the Navy and given an Other Than Honorable Discharge.

On February 18, 2005 an Order Setting Conditions of Release from the United States District Court for Eastern District of Virginia was executed releasing me on an unsecured $25,000 bond.  As you can see, there are many discrepancies in my case.  Therefore, making the separation unethical and invalid.

I have faithfully served my country for over seventeen years.  I am dependable, honest and dedicated.  I made a mistake and I have truly learned from it.  Please do not end my career at this stage in my life.  I would like the opportunity to continue serving my country knowing that my service was not in vain.  For these reasons, I am humbly asking for you to please consider my request for a full reinstatement based on the facts presented.

Respectfully submitted,

[signed]
A_ A_ M_ SSN. (deleted)”

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 149, dtd October 12, 2005
Criminal history background check from Jacksonville Sheriff’s Office, dtd September 29, 2005
Applicant’s DD Form 214
Applicant’s DD Form 215
Document entitled “Supporting Document #4”, undtd
Letter from Detailed Defense Attorney to the Commanding Officer, Patrol Squadron Forty-five, dtd February 23, 2005 (2 pages)
MILPERSMAN 1910-142, dtd August 22, 2002 (3 pages)
MILPERSMAN 1910-144, dtd August 22, 2002 (4 pages)
MILPERSMAN 1910-302, dtd August 22, 2002
MILPERSMAN 1910-304, dtd August 22, 2002 (2 pages)
MILPERSMAN 1910-306, dtd August 22, 2002
MILPERSMAN 1910-410, dtd August 22, 2002
MILPERSMAN 1910-508, dtd August 22, 2002 (3 pages)
MILPERSMAN 1910-514, dtd August 22, 2002
MILPERSMAN 1910-518, dtd August 22, 2002 (2 pages)
MILPERSMAN 1910-710, dtd August 22, 2002 (5 pages)
Sailor/Marine, American Council of Education, Registry Transcript, dtd March 21, 2005 (7 pages)
Respondent Exhibit H, character reference from CSCS J_ M. E_, dtd February 10, 2005
Respondent Exhibit G, letter from K_ M. C_, dtd February 5, 2005 (2 pgs)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	19870612 - 19870927	COG
	Active:   USN	19870928 - 19910813	HON
		USN	19910814 - 19930714	HON
		USN	19930715 - 19990204	HON
		USN	19990205 - 20021204	HON

Period of Service Under Review:

Date of Enlistment:  20021205*		Date of Discharge:  20050428

Length of Service (years, months, days):

	Active:    02  04  24
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  Unknown

Age at Entry:  42

Years Contracted:  Unknown*

Education Level:  12				AFQT:  48

Highest Rate:  SK1

Final Enlisted Performance Evaluation Averages (number of marks):
Performance:  3.6 (4)			Behavior:  3.0 (4)		OTA:  3.47

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Good Conduct Award(5), National Defense Service Medal(2), Global War on Terrorism Service Medal, Kosovo Campaign Medal with Bronze Star, Armed Forces Service Medal, Sea Service Deployment Ribbon(3), Overseas Ribbon Award(3), Meritorious Unit Commendation(2), Navy “E” Ribbon(3), Armed Forces Expeditionary Medal, Southwest Asia Service Medal with Bronze Star, Joint Meritorious Unit Commendation, Navy Achievement Medal, Letter of Commendation.

*Contract not found in record.

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

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

Chronological Listing of Significant Service Events: 

021205:	Reenlisted this date.  [Contract not found in record]

040616:	Counseling:  Applicant advised of failure of the 06/04 physical readiness test by failing the run/walk and informed of corrective actions.

xxxxxx:	“WAYS, MANNERS AND MEANS OF THE CONSPIRACY
	The primary purpose of the conspiracy was to make money through trafficking of firearms purchased in Peninsula area of Hampton Roads, within the Eastern District of Virginia and sold on the streets of Washington, D.C., New York City, New York, Baltimore, Maryland and elsewhere...  On or about November 21, 1998, in Hampton, within the Eastern District of Virginia, A_ A_ M_ (Applicant) purchased a firearm, that is, one Jennings, Model 9, 9mm pistol, serial number 1333262 and transferred it to G_ N_ H_ for subsequent transportation to and sale elsewhere...  On or about January 6, 1999, in Hampton, within the Eastern District of Virginia, A_ A_ M_ (Applicant) purchased a firearm, that is one Jennings, Model J380B, .390 caliber pistol serial number 1156929 and transferred it to G_ N_ H_ for subsequent transportation to and sale elsewhere...”  
	“COUNT 7  THE GRAND JURY FOUND THAT:  On or about October 3, 1998... A_ A_ M_ (Applicant)... did unlawfully and knowingly make a false statement and representation with respect to  information required by the provisions of Chapter 44 of Title 18, United States Code... in that A_ A_ M_ (Applicant) represented on the Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms Form 4473 that he was the buyer of a Jennings, Model 9, 9mm pistol, serial number 1330956 when, in truth and in fact he was not the actual buyer of said firearm.”
	“COUNT 16  THE GRAND JURY FOUND THAT:  On or about November 21, 1998... A_ A_ M_ (Applicant)... did unlawfully and knowingly make a false statement and representation with respect to  information required by the provisions of Chapter 44 of Title 18, United States Code... in that A_ A_ M_ (Applicant) represented on the Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms Form 4473 that he was the buyer of a Jennings, Model 9, 9mm pistol, serial number 1333262, when, in truth and in fact he was not the actual buyer of said firearm.”
[Extracted from document entitled “ATF WASH 2 CEASEFIRE”]

050105:	Judgment in a criminal case.  United States District Court, Eastern District of Virginia, Charge False statements to purchase a firearm (Felony).  The court has dismissed the remaining counts of the indictment with prejudice.  
	The Applicant was committed to the custody of the United States Bureau of Prisons to be imprisoned for a term of five months, with five additional months on home detention while on supervised release and a term of three years supervised release.

050125:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as other than honorable by reason of misconduct – commission of a serious offense.

050131:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

050210:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as other than honorable by reason of misconduct – commission of a serious offense and misconduct – civilian conviction.

050214:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

050214:	Administrative Discharge Board for misconduct due to commission of a serious offense and civil conviction held on or about this date.  [Extracted from appointment letter dated 050207.]

050218:	United States District Court Order Setting Conditions of Release:  Bond for $25,000.00 and Applicant is not to depart the Middle District of Florida unless otherwise directed by Pretrial Services.

050413:	Commander, Navy Region Southeast, directed the Applicant's under other than honorable conditions discharge by reason of misconduct due to commission of a serious offense.

050428:	Applicant’s Evaluation of Report and Counseling, Block 43, comments on performance:  “Evaluation submitted due to Administrative separation from the naval service.  –Petty Officer M_ (Applicant) was convicted of a crime in federal court demonstrating conduct unbecoming a United States military service member bringing discredit upon himself and the Naval Service.  –SK1 M_ (Applicant) has still not completed his Enlisted Aviation Warfare Specialist qualification after two years in the command, demonstrating a lack of initiative and personal responsibility.”

Service Record contains a partial Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050428 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of under other than honorable conditions.  After a thorough review of the available 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).

The Applicant implies that his discharge is inequitable because of his awards, marks, letters of recommendation and record of promotions.  The Applicant also implies that his discharge is inequitable because his misconduct was “minor” and he was close to completing his contract.  Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  An under other than 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.  The Applicant’s service was marred by a civil conviction for violations of federal law demonstrating conduct unbecoming a United States military service member, bringing discredit upon himself and the Naval Service.  The Applicant’s violations of federal law are equivalent to violations of Article 107 of the UCMJ, false official statement.  Violations of Article 107 of the UCMJ are serious offenses, punishable by punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant implies that his discharge is inequitable because the Administrative Discharge Board “failed to give proper weight” to the Applicant’s retention.  The Applicant further implies that the Applicant could have finished his enlistment when he was released on bond.  The Applicant’s issue is without merit.  Reference (A) indicates members may be separated based on commission of a serious military or civilian offense when specific circumstances of offense warrant separation and the offense would warrant a punitive discharge.  The Applicant met the criteria for discharge by reason of misconduct due to the commission of a serious offense.  Separation under these conditions typically results in a character of service of under other than honorable conditions.  There is no evidence in the record, and the Applicant provides no evidence, to support the contention that there existed an impropriety or inequity in the Applicant’s administrative board or anywhere else in the Applicant’s administrative processing.  Relief denied.  

The Applicant contends that he has been a good citizen since discharge.  The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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.  As of this time, the Applicant has not provided any post-service documentation for the Board to consider.  Relief denied.

The Applicant requests that his reenlistment code be changed, that he be awarded “retro pay,” leave, military benefits and reinstatement.  The Board’s action is limited to a review of the propriety and equity of the Applicant’s discharge.  The Board has no authority to change RE-codes, affect reenlistment or award benefits.  The Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning relief in these matters.  Relief on this basis 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 documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge.  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 11, effective 
26 April 2005 until Present, Article 1910-142, 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 107, false official statement.

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