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

Docket No. ND06-00413

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

FOR OFFICIAL USE ONLY

 ex-IC2, USN
Docket No. ND06-00413

Applicant’s Request

The application for discharge review was received on 20060119.  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 20061206.  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 General (Under Honorable Conditions) for convenience of the government due to a physical or mental condition, not a disability.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

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

“I am requesting an upgrade to honorable due to numerous reasons.  Since my discharge, I have finished my master degree, making progress toward a real estate appraisal license, and maintained employment in a security position.  I have strived to better my situation in every means possible.  One purpose of pursuing a discharge upgrade is that this document has become a matter of public record.  I am currently applying for federal law enforcement/intelligence agencies and private security contracting firms.  By having a general under honorable discharge, this has prevented me from possible employment with various companies that must meet State Department guidelines for government contract work i. e. Blackwater, MVM, Custer’s Last Battles, KBR, etc.  With some federal jobs, having a general under honorable would negatively complicate the application process.  Second, there is an error of unjust and inappropriate action from my previous command concerning my treatment of military service and subsequent separation.  There is an ongoing investigation conducted by the Inspector General under agent M_ R_.  The IG investigation started on 3 Nov 2005 and the case number is 05-127.  Thirdly and peripheral to the IG investigation, general under honorable was not appropriate in accordance to DOD directive 1332.14 parts E3.A1.13.4.82, E3.A1.1.3.4.8.3, E3.A2.1.3.2.1.2, E3.A2.1.3.2.1.3, E3.A2.1.3.2.1.4, E3.A2.1.3.2.2.1, and E3.A2.1.3.2.2.2.  A personal statement will be attached to address the issue more in depth.

*I have submitted detailed information to the IG’s investigation and is available on request if needed to help substantiate my claims for a discharge upgrade.

To whom it may concern:

I am writing to you in a request for consideration of my discharge to be changed from general under honorable to honorable.  I personally feel that a general under honorable was not warranted on my behalf due to the quality and length of service.  In accordance to DoD Directive 1332.14 and in reference to my military service, I believe that I have exceeded the standards of acceptable conduct and performance of duty to warrant such an upgrade to honorable.  I will respond to my issues in accordance to the order of parts in DoD Directive 1332.14:

1.) E3.A1.1.3.4.8.2: My suitability screening dated 27 May 2004 and conducted by Lt.  B_ mentioned that due to some physical issues, I am not suitable for sea duty but she recommended shore or overseas screening.  I was also referred to keep taking medication that also swayed in her decision against sea duty.  LCDRs B_ and S_ both stated that I am fit for full duty but recommended rate change or shore duty.

2.) E3.A1.1.3.4.8.3: Upon review of medical records, LCDR B_ made references on
09 Sep 2003; LCDR S_ also concurred with Dr.  B_ on 25 May 2004, 1 Jun
2004, and 15 Jul 2004 that I am fit for full duty and able to function effectively in a military environment.  A separate letter dated 3 Jan 2006 from Dr.  D_ W_ of the VA Mental Health Clinic would also support their statements and added further that my condition was not psychiatric but stress related.  To corroborate the stress induced part of my life, one must refer to IG investigation 05-127 and all subsequent data related to that event.  I was directed, in part by the doctors present, to continue taking medication which would have affected the performance of my rate.  This produced a hand over fist effect of my suitability screening for sea duty.

The contention I have pertaining to the above mention parts E3.Al.1.3.4.8.2 and E3.Al.1.3.4.8.3 is that Naval Station 32nd st did not want to retain me but separate me for medical reasons.  My previous medical condition at the time did not predicate a separation but a change of rate and continuation of further military service.  I disagreed their notion of separation and contended through attempted administrative boards but, my former command have thrusted upon me legal wrangling based upon alleged misconduct that delayed or aborted any administrative boards.  At the time of service, I have served 11 yrs in the navy with a clean record but my 1 1/2 yrs with Naval Station have elicited
five legal issues that were unwarranted.  At the very end, after winning, in part, of an admiral’s board dated 13 Jun 2005, I refused for another administrative board for fear of further persecution.  The IG is currently investigating my former command’s alleged hostile conduct and actions that were directed at me.

3.) E3.A2.1.3.2.l.2 and E3.A2.l.3.2.1.3: At the time of service and at the present time, I have no judgments against me and have both clean criminal and driving record.  I am currently employed as a security guard in San Diego and have maintained that employment for almost 2 yrs.  The attainment of a California Guard card (#1444994) demonstrates a level of professionalism and discipline that would also support my character of service in the military and in the civilian community.

Based on adverse Personal Evaluation dated 20 Jun 2005/personal evaluation comment, a general under honorable would not apply because of my stellar military record, the NJP which was overturned by Admiral B_ in part dated 13 June 2005, and in accordance to E3.A2.l.3.2.1.3, this incident was not indicative of a pattern or behavior but, an isolated incident that did not even warrant the attention of a Captain’s Mast.  The situation regarding the incident and the level of biasness and hostility that is the grounds for my discharge characterization is presently undergoing IG investigation.  Naval Station made a statement, under commanding officer comments in Administrative Separation paper dated 20 Jun 2005, that my “medical condition adversely impacts the safe, reliable, and proficient performance of duties” even though up to that time I received good evaluation marks and this was contrary to the various doctors mentioning that I was fit for full duty with no adverse problems.

4.) E3.A2.1.3.2.1.4: Naval Station 32nd St took no consideration tome being 35 yrs of age with 11 yrs of faithful military service, 97 ASVAB, outstanding on all my physical readiness tests, in pursuant of my master’s degree, and have scored 3.0 to 4.0 on my personal evaluations.  In perspective, I have three Good Conduct awards and was only months away from receiving gold chevrons in my uniform for having 12 yrs of clean military service.

5.) E3.A2.1.3.2.2.1: I have prior service and was discharge under honorable conditions dated 2 May 1990 and reenlisted with an honorable discharge on 1 Feb 2002.  I have also been awarded three Good Conduct Awards.

6.) E3.A2.l.3.2.2.2: I feel that there is no significant negative aspects of my conduct or performance that would justify me from receiving anything but an honorable discharge.

I hope this preliminary explanation would clarify any questions for my desire for a discharge upgrade to an honorable.

Sincerely,
[signed] M_ R_ Jr (Applicant)

M_ R_ Jr”

Documentation

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

Letter from Department of Navy, Inspector General, R. D_ H_, dtd November 3, 2005
E-mail from M_ R_, Investigator, Inspector General’s Office, Commander, Navy Region Hawaii to Mr R_ (Applicant), dtd November 21, 2005
Applicant’s DD Form 214 (Member 4) (2)
Applicant’s DD Form 214 (previous) for Erroneous Enlistment
Academic Record from Alliant International University
Pages from Applicant’s service record (11 pgs)
Evaluation Report & Counseling Record for period of 05 March 16 to 05 June 20 (2 pgs)
Adverse Performance Evaluation Report, dtd June 20, 2005
Evaluation Statement from IC2 M_ R_ (Applicant), dtd June 20, 2005
Evaluation Report & Counseling Record for period of 04 March 16 to 05 March 16 (2 pgs)
Evaluation Statement from IC2 M_ R_ (Applicant), dtd May 31, 2005
Evaluation Report & Counseling Record for period of 03 October 08 to 04 March 15 (2)
Evaluation Report & Counseling Record for period of 03 March 16 to (date not legible)
Evaluation Report & Counseling Record for period of 02 July 04 to 03 March 15
Evaluation Report & Counseling Record for period of 00 August 01 to 02 July 03 (2 pgs)
Evaluation Report & Counseling Record for period of 99 June 16 to 00 August 01 (2 pgs)
Evaluation Report & Counseling Record for period of 98 June 16 to 99 June 15 (2 pgs)
Evaluation Report & Counseling Record for period of 98 February 10 to 98 June 15 (2 pgs)
Evaluation Report & Counseling Record for period of 97 June 16 to 97 December15 (2 pgs)
Evaluation Report Extension, dtd February 5, 1998
Evaluation Report & Counseling Record for period of 96 December 16 to 97 June15 (2 pgs)
Evaluation Report & Counseling Record for period of 96 June 22 to 96 December 15 (2 pgs)
Evaluation Report & Counseling Record for period of 94 November 02 to 96 June 21 (2 pgs)
Enlisted Performance Evaluation Report for period of 95 February 01 to 95 June 23
(2 pgs)
Evaluation Report & Counseling Record for period of 94 May 07 to 94 August 31 (2 pgs)
Letter from D_ W_, Ph.D., M.D. Medical Director, Mental Health Clinic, dtd January 3, 2006
Pages from Medical Record (11 pgs)
Letter from Applicant, undated

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	19880831 - 19890515	COG
	Active:    USN	19890516 - 19900502	HON
	Inactive:  USNR (DEP)	19940224 - 19940306	COG
	Active:    USN	19940307 – 20020131	HON

Period of Service Under Review:

Date of Enlistment:  20020201		Date of Discharge:  20050620

Length of Service (years, months, days):

	Active:    03  04  19  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  32

Years Contracted:  5 

Education Level:  12				AFQT:  97

Highest Rate:  IC2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0 (6) 		Behavior:  3.0 (6) 			OTA:  2.95

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal (2^ND), Navy Rifle Marksmanship, Navy Good Conduct Medal (3^rd), Flag Letter of Commendation (2^nd), Overseas Service Ribbon, Sea Service Deployment Ribbon, Global War on Terrorism Service Medal, Parachutist Badge, Air Assault Badge

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

GENERAL (UNDER HONORABLE CONDITIONS)/CONDITION, NOT A DISABILITY, authority: MILPERSMAN, Article 1910-120 (formerly 3620200).

Chronological Listing of Significant Service Events: 

020201:	Reenlisted this date for a term of 5 years.

040525:	Limited Duty Reevaluation Check Sheet: Applicant found fit for full duty and may be available immediately [Extracted from supporting documents].

041027:	BUPERS Millington TN notice to NAVBASE San Diego of Applicant M_ R_ unsuitability for operational duty.  BUPERS directed NAVBASE San Diego with authority to process Applicant for ADMIN SEP.  The separation is considered an involuntary separation.

050110:	Retention Warning:  Advised of deficiency (Your medical conditions adversely impacts the safe, reliable, and proficient performance of your duties), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

050526:	NJP for violation of UCMJ, Article 134: Disorderly conduct.
	Award:  Restriction and extra duties for 15 days.  No indication of appeal in the record.

050613:	Appeal of non-judicial punishment denied [Extracted from supporting documents].

050614:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of convenience of the government physical or mental conditions.

050614:	Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

050620:	Adverse performance evaluation report [Extracted from supporting documents].

050620:	Commanding Officer, Naval Base, San Diego forwarded the administrative discharge package to CNPC.  Commanding Officer’s comments:  “IC2 R_’s (Applicant) medical conditions renders him incapable of being worldwide assignable.  His medical condition adversely impacts the safe, reliable, and proficient performance of his duties.  On 26 May 2005 IC2 R_ was found guilty at Captain’s Mast for disorderly conduct.  His disorderly behavior detracted from the respect and authority rightfully due the position of a Senior Chief Petty Officer.  He is simply unwilling to adhere to the rules and regulations of this command and the U.S. Navy.  His actions are not conducive to good order and discipline and are not consistent with Navy core values.  If member was separated locally under authority granted by MILPERSMAN 1910-700, provide date, reason, characterization, and SPD code (ensure a copy of DD 214 is attached as an enclosure): Convenience of the Government-Physical or Mental Conditions, General (Under Honorable Conditions) HFV.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050620 for convenience of the government due to a physical or mental condition, not a disability (A) 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 (B and C).  

The Applicant claims that a general under honorable discharge is not warranted because of the quality and length of his 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, one nonjudicial punishment proceeding for violation of Article 134 (Disorderly conduct) of the UCMJ.  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 “Since my discharge, I have finished my master degree, making progress toward a real estate appraisal license, and maintained employment in a security position.  I have strived to better my situation in every means possible.”  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 sufficient post-service documentation to consider mitigating the misconduct that resulted in the characterization of discharge.  Relief denied.

The Applicant claims that the general under honorable discharge has prevented him from possible employment with various companies that must meet State Department guidelines for government contract work.  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination of 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 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), effective 25 May 2005 until Present, Article 1910-120, SEPARATION BY REASON OF CONVENIENCE OF THE GOVERNMENT - PHYSICAL OR MENTAL CONDITIONS.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

C.  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 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