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Docket No. ND06-00345

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

FOR OFFICIAL USE ONLY

ex-ITSA, USN
Docket No. ND06-00345

Applicant’s Request

The application for discharge review was received on 20051227.  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 20061130.  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 characterization of the discharge shall not change.  The discharge shall remain General (Under Honorable Conditions) by reason of misconduct due to a pattern of misconduct.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application and/or attached document/letter:

“I am requesting a change in the characterization my discharge from General under honorable conditions to Honorable.  I have served my nation and country to the best of my ability.  Before my entrance into the Naval Service I served in the Texas Army National Guard for two years successfully completing Infantry Basic training and Airborne school.  I received an Honorable discharge for that enlistment term.  Subsequently during my Naval career I had some instances of disciplinary problems, however I took full responsibility for them.  Furthermore, I believe that my accomplishments outweighed the negative aspects of my Naval service.
The disciplinary actions rendered against me while at my initial duty station (Diego Garcia) was the result of a family situation (I was listed as UA for three weeks after being denied a leave extension), I willingly took the punishment because I believed and still believe any young person in my shoes would have done the same.
During my next duty station, I performed my duties in an exemplary manner prior to the recommendation of Commander G_ that I should be administratively separated.  As an integral part of Naval Special Warfare Group two I was awarded the Kosovo Campaign Medal and NATO Medal, recognized as spot performer of the month for June 2002, awarded Naval Parachute Wings July 2003, completed 37 hours of college during my tour of duty, completed nine Naval correspondence courses and additionally I received a must promote on each yearly evaluation.  The situation, which Commander G_ felt warranted a discharge, was simply an inadvertent mistake on my part.  I omitted two civilian charges against me on an SF-86 clearance application, one charge had been dismissed and the other resulted in a disturbing the peace conviction.
However I had previously given the chain-of-command documentation on the disturbing the peace conviction as well as having a command representative accompany me to court.  Once I was made aware of my mistake I corrected it by making a sworn statement to Special Agent W_ from the Defense Investigative Service who was handling my clearance application.  That statement is enclosed under item 8 attachments.  In my opinion, the chain-of-command showed tremendous indifference during their investigation of my alleged intention to make a false official statement.  They ignored the most vital piece of evidence, which was my sworn statement to Special Agent W_.
The primary reason I am requesting this change in discharge is because I would like to continue to serve in the military possibly as an Army officer.  While it is my sincere regret that I cannot continue my service in the U.S.  Navy I believe from the bottom of my heart that I have valuable experience and leadership ability, which would be a vital asset to another service in the future.  I thank you for your consideration in this matter.

Respectfully,
B_ J. T_(Applicant)”

Documentation

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

Applicant’s DD Form 214 (Member 4)
Statement from Applicant, prepared by Special Agent W_, undtd and unsigned
Character Reference ltr from Reverend D_ S. D_, Rock Church of Franklin, dtd December 2, 2005
Character Reference ltr from B_ M_, dtd October 28, 2005
Character Reference ltr from Lt. W_ G_, USAR, undtd
Character Reference ltr from Colonel W_ C. C_, dtd November 18, 2005
Character Reference ltr from Colonel R_ J. L_, USAF (Ret.), dtd December 14, 2005
Applicant’s unofficial transcript from University of Maryland University College, dtd November 10, 2005 (2 pages)
Four pages from Applicant’s service record
Applicant’s Honorable Discharge certificate, dtd June 30, 2001
Applicant’s Outstanding Performance certificate as a “SPOT PERFORMER”, dtd July 3, 2002

PART II - SUMMARY OF SERVICE

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

	Active:    USANG	010630	HON
	Inactive:  None

Period of Service Under Review:

Date of Enlistment:  20000406		Date of Discharge:  20040109

Length of Service (years, months, days):

	Active:    03  09  04
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  20

Years Contracted:  4 (12-month extension)

Education Level:  12				AFQT:  77

Highest Rate:  ITSN

Final Enlisted Performance Evaluation Averages (number of marks):*

Performance:  3.5 (2)			Behavior:  3.0 (2)		OTA:  3.42

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal; KOSOVO Campaign Medal; Navy and Marine Corps Overseas Ribbon; NATO Medal; Naval Parachutist Wings(PJ)

*Extracted from supporting documents submitted by the Applicant.

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

GENERAL (UNDER HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority:  MILPERSMAN, Article 1910-140 (formerly 3630600).

Chronological Listing of Significant Service Events: 

000317:	Pre-service waiver for drugs granted.

010228:	NJP.  No further information found in service record.  [Extracted from NAVPERS 1070/604, Awards.]

010309:	NJP for violation of UCMJ, Article 86:  One specification of unauthorized absence.
	Date of Offense: February 2001.
	Award:  Forfeiture of ½ pay per month for two months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

010309:	Retention Warning:  Advised of deficiency (Misconduct as evidenced by Commanding Officer’s nonjudicial punishment of 010309 for violation of the UCMJ, Article 86 (Unauthorized absence).), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

010405:	NJP for violation of UCMJ, Article 91: One specification of insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer.
Violation of UCMJ, Article 134 (3 specs): Two specifications of breaking restriction and one specification of wearing unauthorized insignia, decoration, badge, ribbon, device, or lapel button.
Date of Offense:  March and April 2001.
	Award:  Correction custody for 30 days, reduction to E-1.  No indication of appeal in the record.

031208:	NJP for violation of UCMJ, Article 107 (2 specs):  False official statements.
	Award:  Reduction to E-2, Admin Sep.  No indication of appeal in the record.

040109:	DD Form 214: Applicant discharged with a general (under honorable conditions) by reason of pattern of misconduct, authority:  MILPERSMAN 1910-140.

Service Record did not contain the Administrative Discharge package. 
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 20040109 by reason of misconduct due to a pattern of misconduct (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).

The Applicant claims his overall accomplishments from his period of service outweighed the negative aspects of his Naval service.  When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  A general 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 one retention warning, 4 nonjudicial punishment proceedings for violations of Articles 86 (Unauthorized Absence), 91 (Insubordinate conduct toward warrant, noncommissioned, petty officer), 107 (False official statement) and 134 of the UCMJ.  For the edification of the Applicant, the Manual for Courts-Martial authorizes the award of a punitive discharge if the above articles are 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 states “The primary reason I am requesting this change in discharge is because I would like to continue to serve in the military possibly as an Army officer.”  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.

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), re-issued October 2002, effective 22 Aug 2002 until Present, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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, Articles 91 (Insubordinate conduct toward warrant officers, noncommissioned officers, or petty officer), 107 (False official statement) and 134 (Wearing unauthorized insignia, decoration, badge, ribbon, devices) 

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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