Author: CAP
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Docket No. ND06-00451

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

FOR OFFICIAL USE ONLY

ex-AOAA, USN
Docket No. ND06-00451

Applicant’s Request

The application for discharge review was received on 20060131.  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 20061214.  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.

The NDRB did note an administrative error on the original DD Form 214.  Block 24, Character of Service, should read: “UNDER OTHER THAN HONORABLE CONDITIONS,” and Block 28, Narrative Reason for Separation, should read: “MISCONDUCT”.  The Commander, Navy Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

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

“Dear Mr./Ms. Sir or Madam:

First of all I want start of by introducing myself, my name is J_ V_(Applicant) and I was in the military for three years eight months and three days, from August 17, 2000 until April 19, 2004.  I am writing this letter to obtain an upgrade or change to my discharge characterization.  I was discharged with an Administrative Separation and given a characterization of service “Under Other Than Honorable” Conditions on April 19, 2004.  I truly believe my separation is inappropriate and because of it I am writing this letter.
I went up for Captain’s Mast because of a serious offense that I was involved with, along with two other people A_ J_ and S_, J. I_.  This is something I regret and still paying for.  This incident took place on February 17,2004.  J_ and S_ had decided to take my roommate’s (ATAN E_ A. L_) laptop and radio control helicopter and CD’s he owned.  They thought no one would ever find out it was them.  The reason why I was involved was because I gave A_ and S_ the key to my room allowing them to take the things, in exchange for some wheels they were going to give me for my car.  I let them convince me into allowing them to use my key (The biggest mistake I made in my life).  I truly messed up, especially knowing I was going to be getting out of the military real soon with an early discharge because my squadron was decommissioning and my character of service was going to be “Honorable” Conditions.  Because of bad influences and bad decision making I ruined the clean reputation I had.  I went on with A_ and S_’s plan and agreed to let them use my key to open the door.  This took place in the Military barracks in North Island, California.  They managed to take his things while my roommate was out and I had gone home for the weekend in Fresno, CA, to be with my wife and family.  After it all took place it left A_ and S_ thinking they had gotten away with it.  I felt remorse and wrong about it.  Since the very beginning I told them to give the things back.  They wouldn’t listen; they thought about it and said they wouldn’t get apprehended for their actions.  After two weeks I was questioned first about the incident.  They told me about my roommate’s things and that they were stolen and whether I knew anything about it or heard anything in regards towards it.  I was questioned by three individuals at that time those individuals were the persisting Executive Officer LCDR H_ D.  K_ and the Legal Officer LT S_ A. R_ and Chief AOC(AW) W_ M_.  They all questioned me towards the incident and what took place that day and I told them I didn’t know anything about it.  I told them at first I didn’t know anything because I didn’t want to get in trouble or jeopardize my future but they continuously asked me questions and told me to tell them if I knew anything.  Finally the Executive Officer LCDR H_ D. K_ said “If you know anything, tell us about it, and you will still get your early out under Honorable Conditions.”  Those were his exact words.  He implied and guaranteed me this because he and everyone else knew I was going to be getting out of the Military really soon; due to the squadron decommissioning in April and I had requested early out, which had already been approved.  I believed the Executive Officer and turned in the perpetrators.  After I turned them in, nothing happened as they had implied.  I know I needed to be punished for my actions in the involvement with the incident but I didn’t deserve to be discharged with a “Characterization of Under Other Than Honorable” Conditions.  After this took place A_, S_ and I were restricted to the base and were going to be going up for Captain’s Mast.  All three of us went up for Captain’s Mast and got the same disciplinary action: reduction in rate and forfeiture of half months pay for two months, 45 days restriction and 45 days extra duty.  After Captain’s Mast I was told by the Legal Officer LT S_ A.  R_ that the Commanding Officer was going to be requesting for me to be Administrative Separated and requesting the lowest character of service which I ended up receiving “Under Other Than Honorable” Conditions.  After that he advises me to request an Administrative Board, so I can change the Commanding Officers (CDR K_, M.  C_) decision.  He also advise me that if I did that it wouldn’t help me in my case it would only be worse for me so he instead said that I could submit a letter to the Separation Authority in lieu of a board, a letter to the persisting Admiral that gave final approval or disapproval to the Commanding Officer to Administrative Separate me.  This meant I had to prove to the Admiral that he shouldn’t approve the Commanding Officers decision in separating me with an (OTH).  I agreed to write the letter because I had no other choice.  I received help from the once Legal Officer LT A_ M_.  He advised me and helped me write the letter.  After I finished the letter I gave it to the persisting Legal Officer at that time, which was LT S_ A.  R_ but I seriously doubt that it went all the way up to the persisting Admiral because I was never informed of the Admiral’s responds to it or his decision.  I don’t have the letter to send you a copy as evidence because I lost the disk that I had it saved on in a recent fire at my home.  I am pretty sure they have a copy in my record or files.  If they don’t that means nothing was done with my letter but thrown away.  Another thing I was never told was that I could consult with a military attorney (free of charge).  I was never given a copy of authority for separation nor did they allow me to speak to the Commanding Officer.  They also gave me a separation code of (HKQ) which shouldn’t have been used.  If they were going to give me a separation code for their reason they should have used (HKA).  I also received a re-entry code of RE-4 not eligible for reenlistment.  This was unfair.  Especially after the Executive Officer had implied before that I was going to be receiving an early out with “Honorable” Conditions.
I believe I was not treated equally or fair.  This discharge is not consistent with the policies and traditions of the service.  They also improperly gave me a wrongful character of service (OTH) and separation code (HKQ). 
 I believe they discharged me for personal reasons one of them is because they did not like me nor did they want me around especially during the time that we were close to decommissioning and for many other issues arising at that time.  They found it easier to just discharge me (OTH) then to find another solution.  As in “they” I mean the higher chain of command from the Legal Officer to the Executive Officer and the Commanding Officer.  Plus they knew what my plans were after I would leave the Military.  I was going to go to college to study for a career in law enforcement which they didn’t want me to receive any of the VA benefits which would help me tremendously, financially.  Which at this very present time I am pursuing a career as a Peace Officer.  Also as a general matter, regulations require the Military to determine characterization upon a pattern of behavior rather than an isolated incident.  This shows I was not given a chance to prove I had made a mistake and the only mistake I had made in my whole entire life and military career.  They just took that and made an example out of me because they saw me as a waste of time and someone with no value or who would have a pattern of behavior that constitutes a significant departure from the conduct expected of members of the Military Services.  As another general matter, the various service regulations require reasonable efforts at rehabilitation prior to initiation of separation proceedings.  I believe I was not treated equally or fair.  The reason I say I was not is because many other personnel in the command at the time had incident over incident and as a disciplinary action they only received restriction, forfeiture, and extra duty basically a slap on the hand.  These personnel have a pattern of misconduct that could not be rehabilitated but the higher chain of command thought different no matter the behavior pattern.  The personnel I speak of are AMEAN S_ C.  H_, AOAN J_ D. T_, AN A_ F. A_, and AEAN T_ D_.  These and other personnel who I don’t know there names have more than three incidents and the command still put up with there misconduct.  I also bring these personnel up because if you check their records and compare them you would see what I am writing about.  In my case I have always proven how much I am worth and useful to the military.  I did this by accomplishing all the tasks assigned by my superiors and earned many awards and recognitions during my military career.  I received two Letters of commendation one from Commanding Officer, USS CARL VINSON (CVN 70) from May to June 2001 and one from Commander, Carrier Group Three from July 2001 to January 2002.  I also received one citation for outstanding performance as an Ordnance Technician from the Commanding Officer K.M.  C_, Sea Control Squadron TWO NINE.  On August 16, 2003 I received my fist GOOD CONDUCT AWARD from Commanding Officer K.M.  C_, Sea Control Squadron TWO NINE.  The following month I earned my Enlisted Aviation Warfare Specialist Breast Insignia.  Not only that I earn my second sea service ribbon and the national defense service medal and the NAVY “E” ribbon.  All this showing I live up to the Navy Core Values of honor, courage and commitment.  I always had and have good military discipline, good order, and morale and there is no sign or evidence that shows the likelihood of continuation or recurrence of the circumstances forming, I have no past history of letters of reprimand or admonition, or counseling records or anything that would show me as a disruptive or undesirable influence person to anyone.  This is also shown in my evaluation report and counseling record, the first one I received I obtain a 3.57 on my individual trait average from March 1, 2001 to July 15, 2003 on the second evaluation report and counseling record I received a 2.33 from July 16, 2003 to April 19, 2004 due to going to Captain’s Mast and being my last evaluation and showing the need for my separation but which really didn’t demonstrate my actual performance at all they just wanted to show what was someone who didn’t belong in military in which they were wrong but they falsely protrude a low performance trait in order to separate me immediately.  They basically didn’t have any reason(s) to separate me so they used anything they could in order to give me an ADMINISTRATIVE SEPARATION.  I appreciate your assistance and time.  I thank you for everything...

Sincerely,
[signed]
V_ J_ G(Applicant)”

Documentation

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

Applicant’s DD Form 214 (Member 1 and 4)
Evaluation Report and Counseling Record for period from March 1, 2002 to July 15, 	2003
Evaluation Report and Counseling Record for period from July 16, 2003 5o April 19, 	2004
Letter of Commendation from Commanding Officer, USS CARL VINSON (CVN 70) 	for outstanding performance from May to June 2001
Letter of Commendation from Commander, Carrier Group THREE for outstanding 	performance from July 2001 to January 2002
Good Conduct Award certificate, dtd August 16, 2003
Citation from Commanding Officer, Sea Control Squadron TWO NINE for outstanding 	performance from March to October 2003
Navy Unit Commendation Citation for the period September 11, 2001 to March 3, 2002
Certificate of qualification as Enlisted Aviation Warfare Specialist, dtd September 28, 	2003
Certificate of completion of PREVENT, dtd June 28, 2001
Certificate of completion for AT Level 1 Awareness Training, dtd August 29, 2002
Letter from Fresno City College, T_ L_, Extended Night Academy Coordinator, dtd 	March 1, 2006

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19991026 - 20000816	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20000817		Date of Discharge:  20040419

Length of Service (years, months, days):

	Active:    03  08  03
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  18

Years Contracted:  4

Education Level:  12				AFQT:  32

Highest Rate:  AOAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.5 (4)		Behavior:  2.3 (4)		OTA:  3.02

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Navy Unit Commendation, Navy Good Conduct Medal, EAWS, Sea Service Deployment Ribbon(2nd) National Defense Service Medal, Navy “E” Ribbon

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: 

040224:	NJP for violation of UCMJ, Article 78:
	Specification: In that Aviation Ordnance Airman J_ G. V_(Applicant), U.S. Navy, Sea Control Squadron Two Nine, on active duty, knowing that at NAS North Island Building 787, on or about 040207, petty officers third class J_ C. A_ and second class I_ J. S_ had committed an offense punishable by the Uniform Code of Military Justice, to wit: larceny, did, at Sea Control Squadron Two Nine, NAS North Island, on or about 040208 in order to prevent the punishment of said petty officers assist the said petty officers by supplying the entry key to Airman L_’s room..
	Violation of UCMJ, Article 81:
	Specification: In that Aviation Ordnance Airman J_ G. V_, U.S. Navy, Sea Control Squadron Two Nine, on active duty, did, at NAS North Island, on or about 040206 conspire with Petty Officer J_ C. A_ and Petty Officer I_ J. S_ to commit an offense under the Uniform Code of Military Justice, to wit: larceny of personal property, of a value of about $8,000, the property of Airman E_ L_, and in order to effect the object of the conspiracy the said airman and petty officers did agree to steal Airman L_’s personal property and mislead investigators.
	Violation of UCMJ, Article 107:
Specification: In that Aviation Ordnance Airman J_ G. V_, U.S. Navy, Sea Control Squadron Two Nine, on active duty, did, at NAS North Island, on or about 040213, with intent to deceive, make to LT S_ R_ an official statement, to wit: I don’t know who stole Airman L_’s property, which statement was totally false, and was then known by the said airman to be so false.
	Award:  Forfeiture of $792.00 per month for 2 months, restriction and extra duty for 45 days, reduction to AOAA.  No indication of appeal in the record.

040315:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable by reason of commission of a serious offense as evidenced by awarded NJP for violating UCMJ Articles 78, 81, 107 on 040217.

040315:	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 and to submit a statement.

040324:	Commanding Officer, Sea Control Squadron 29, recommended discharge under other than honorable conditions by reason of commission of serious offense.  Commanding Officer’s comments:  “Airman Apprentice V_(Applicant) gave one of his BEQ room keys to another Sailor knowing the Sailor and one other Sailor were going to steal property form Airman Apprentice V_’s roommate.  When questioned, Airman V_ made a false official statement concerning his knowledge of his role in the theft of over $6,000 of personal property from his roommate.  After questioning and being presented with evidence that proved it was his room key that was used to enter the BEQ room during the five-hour window of opportunity, he confessed.  He also admitted to conspiring with the same two Sailors to steal a fourth Sailor’s truck.  As of this date, Airman Apprentice V_ has not apologized to the Sailor he stole from or made any attempts at restitution.
	In Enclosure (2), Airman Apprentice V_ makes a plea for leniency.  He states that he belongs in the Navy and he wants the opportunity to learn from his mistake and stay in the Navy.  His statement is clearly misleading and perhaps untruthful.  On 04 Feb, thirteen days before he committed the offense, Airman Apprentice V_ requested an “early out” for Apr 04 vice finishing out his enlistment on the USS Nimitz (CVN 68).  Enclosure (10) is the Commander, Naval Personnel Command approval for his Apr 04 early out.  He clearly had no intentions of staying in the Navy.
	For these reasons I am recommending Airman Apprentice V_ for separation from the Navy Service by reason of Misconduct - Commission of a serious offense. AOAA V_ is recommended to receive a discharge under Other Than Honorable conditions.”

040405:	Commander, Cruiser-Destroyer Group FIVE, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040419 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 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).

In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.  Specifically, the Applicant alleges that:
-	he was promised an Honorable discharge if he cooperated with an investigation regarding a theft
-	the Legal Officer provided him with bad advice regarding his decision to waive an  appearance before an Administrative Separation Board
-	he should have been offered rehabilitation prior to the initiation of separation proceedings
-	he was not informed as to the Command’s response to a letter that he submitted in lieu of  a board
-	he was never told that he could consult with a military attorney

The record contains no evidence, and the Applicant has not submitted any evidence, to support the allegations of wrongdoing by the government or anyone involved  in the discharge process.  On 20040315, the Applicant signed an ADMINISTRATIVE SEPARATION PROCESSING NOTICE-ADMINISTRATIVE BOARD PROCEDURE, wherein he was notified of the reason for separation and the least favorable characterization possible.  Further, on that same document, the Applicant waived both, his right to consult with qualified counsel, and his right to appear before an Administrative Separation Board.  There is no evidence of impropriety, inequity or procedural irregularities in the Applicant's discharge.  Relief denied.  

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.  An under other than honorable conditions  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 a nonjudicial punishment proceedings for violations of Articles 78, 81 and 107 of the UCMJ.  Violations of UCMJ Articles 78, 81, and 107 are considered serious offenses for which a punitive discharge is authorized if adjudged 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 summary of service clearly documents that misconduct due to the commission of a serious offense(s) was the reason the Applicant was discharged.  The separation code for commission of a serious offense is “HKQ”, therefore, the Applicant’s DD FORM 214 Block 26, Separation Code is correct. 

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 NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered.  The Applicant provided one letter verifying his enrollment in a Peace Officer Training Course from as documentation of post-service accomplishments.  The Applicant's efforts need to be more encompassing than those provided.  For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities.  The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of discharge.  Therefore, no relief will be granted

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 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 78 (Accessory after the fact), 81 (Conspiracy), and 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.

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