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NAVY | DRB | 2002_Navy | ND02-00726
Original file (ND02-00726.rtf) Auto-classification: Denied


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

ex-YN2, USN
Docket No. ND02-00726

Applicant’s Request
The application for discharge review, received 020425, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region. The Applicant listed the Disabled American Veterans as the representative on the DD Form 293. In the acknowledgement letter to the Applicant, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.
Decision

A documentary discharge review was conducted in Washington, D.C. on 030124. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the Applicant’s service. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. The government's entire case is not only based on circumstantial evidence, but the OPINIONS of LCDR M_ (HSL-48 Administrative Officer). To this date, and forever, HSL-48 will ever know who's guilty or innocent because of their incomplete investigation. On December 8, 2000, LCDR M_ ordered myself and the other three Yeoman to be questioned by the Naval Criminal Investigative Service (NCIS). We were all questioned and to no avail, they weren't able to identify a culprit. YNSR P_ at this time was the number I suspect and eventually kicked out of the Navy for use of PCP was questioned first. After three hours of being questioned, P_ made a written statement to NCIS that I was the guilty party. Once P_ made that statement, I was the only one investigated. After a month of investigating, they couldn't find any direct evidence. In mid-January my command decided to take me to Captain's Mast based upon P_'s statement and the same evidence they compiled against all four Yeoman. After being read my rights for Captain's Mast, I went to the Navy Legal Service Office (NLSO) and spoke with LCDR S_. He stated to me that if I was totally innocent, decline Captain's and demand trial by court-martial. I immediately went back to my command and followed his advice. After a couple of months of waiting, I decided to go and talk to the Commanding Officer (CDR C_) to see which direction my career headed. In that two hour conversation he stated to me that he didn't know whether or not I committed the crimes, but because I refused to let him hear the case at Captain's Mast, he was going to send the case to an Administrative Board. On April 9, 2001 my Admin Board was held. None of the Government's witnesses could positively say that I was guilty party. Despite the lack of evidence, the Admin Board composed of all HSL-48 personnel, voted on April 10, 2001 that I be discharged with an Other than Honorable discharge. Due to the tactics used by the Government, my attorney typed a Letter of Deficiency to CDR C_ and asked to him to disagree with the Board's decision. In return, CDR C_ agreed with the Board and sent his endorsement to the Separation Authority (Commander, Navy Region Southeast). On May 22, 2001 the Separation Authority delivered a letter to my command stating that I be discharged with a General (Under Honorable Conditions). My attorney informed me that once they reviewed my case, they gave my command the option of giving me a new Admin Board or discharging me with a General discharge. Subsequently, they chose to give me a General discharge as a sort of moral victory.

2. To this date, I still maintain my innocence and feel as though my outstanding Naval career was taken from me. I feel based on my outstanding performance, as noted in my evaluations, I should receive an Honorable discharge as which my Naval career was.

3. In August 2001, I started a new chapter in my life at Tallahassee Community College in Tallahassee, Florida. I plan on receiving my bachelor's degree in Public Administration and an associate's degree in Computer Networking. I'm currently in my second semester of college and I'm afraid that once I receive my degrees and apply for jobs, employers will see my DD 214 and assume that I'm a troublemaker and won't give me the chance that I deserve. The way my Navy career ended only added fuel to the desire that I have in succeeding in life. I was on the Dean' s List last semester and invited to join the school's honor society fraternity. I'm also working on trying to get into the Naval Reserve. Thank you for your time in helping me bring this chapter in my life to a close. Sincerely,

4. Dear Chairperson:

After a review of the Former Service members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to support the contentions as set forth by the Applicant, in his request that he be given the opportunity to change of his General (Under Honorable Conditions) Discharge to a Honorable Discharge.

The (FSM0 joined the United States Naval Services on November 27, 1995 until June 15, 2001 where he served and was convicted of several counts of Larceny /Government credit card and ATM withdrawals, misconduct was the narrative reason for his separation from his term of service.

(FSM) states that he is extremely sorry for his youthful and immature behaviors that he demonstrated in the past and seeks now to better his life through seeking positive ways to establish and reassess his priorities. The (FSM) desires now to first request an up-grade in his military separation Discharge Conditions (Under Other Than Honorable Conditions) to an Honorable Discharge.

The (FSM) seeks now to up-grade his discharge also in an effort to receive Educational benefits and entitlements for his military service and to re-establish his life in hopes for better secure job opportunities and a secure and better future for him and his family. The (FSM) now respectfully requests an equitable standard be applied as well as equity in treatment in seeking the boards' forgiveness for his misconduct behaviors while a member of the United States Naval Services. The (FSM) sincerely hopes that by respectfully requesting and being granted an Honorable Discharge from the Navy, he feels and will continue to feel that a Honorable Discharge is a matter of Supreme Honor and Respect he will honor and cherish throughout his lifetime. The (FSM) also states he had always tried to achieve Honor and Respect during his entire military duty in the Naval Service. We again respectfully request that the (FSM) be given complete and duly consideration by the board.

We also respectfully request that the board consider each reasonable explanation submitted by the (FSM) who now wishes to correct the General (Under Honorable Conditions) character of his discharge to an Honorable Discharge.

We ask for the Boards careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the Applicant.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant's DD Form 214
Fifteen pages from Applicant's service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     950329 - 951126  COG
         Active: USN               951127 - 990916  HON

 Period of Service Under Review :
Date of Enlistment: 990917               Date of Discharge: 010615

 Length of Service (years, months, days):

         Active: 01 08 29
         Inactive: None

 Age at Entry: 21                          Years Contracted: 2

 Education Level: 12                        AFQT: 40

 Highest Rate: YN2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.50 (2)    Behavior: 2.50 (2)                OTA: 3 .00

 Military Decorations: None

 Unit/Campaign/Service Awards: GCM, SSR, AFSM (2), AFEM (2), NATO, NDSM, NUC, N/MAM

 Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

 Chronological Listing of Significant Service Events :

990917:  Applicant reenlisted for 2 years.

010305:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
010307:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
010409:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed a serious offense (larceny and frauds against the United States, making or using a false writing or other paper in connection with claims), and by a vote of 3 to 0, that the misconduct warranted separation based upon misconduct due to commission of a serious offense (larceny), and by a vote of 2 to 1 that the misconduct warrant separation based upon misconduct due to commission of a serious offense (frauds against the United States, making or using a false writing or other paper in connection with claims) and by a vote of 3 to 0 recommended discharge under other than honorable conditions.

010511:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. Commanding Officer’s comments (verbatim): I fully concur with the Board's finding of misconduct due to commission of a serious offense (larceny) and recommend separation from the U.S. Navy with an Other Than Honorable Discharge. This is a sad case of a person in a position of trust and confidence, violating that trust due to greed. There are numerous facets of YN2 (Applicant's) misconduct; first, unauthorized use of his Government Travel Credit Card (GTCC); second, larceny by stealing and then using four other member's GTCC's to make personal purchases; finally, manipulating the command leave logs and files to preclude charged leave for selected individuals.

 (1) Regarding his own card - On 27 July 2000 a GTCC application for YN2 (Applicant) was submitted to Bank of America (BOA) for approval. It is my policy that the GTCC for all non-frequent travelers be retained in a safe in the Admin office until issued for TAD assignments. This is to preclude loss or misuse of the GTCC . On 15 September 2000 YN2 (Applicant) was asked about his card and he denied ever receiving it. We checked with BOA and learned that not only had the card been issued and mailed to Petty Officer (Applicant) using the Squadron's address (per his request), it was activated and had over $400 charged against it already. We immediately cancelled the card. Since only YN2 (Applicant and another Sailor (YNSN (B_) picked up the mail during this period, and the charges were made in the Regency Mail (approximately one mile from (Applicant's) off-base residence), we asked (Applicant) about using the card. He again denied receiving the card or any other paperwork from BCA. Although we had not encountered previous problems with mail addressed to the command, we chose to believe YN2 (Applicant) and pursued the matter as if his GTCC and follow-up activation letter had been stolen at the post office. In working with the BOA fraud department, we learned his card had been activated from a phone number on Naval Station Mayport, which we later learned was the residence of a civilian friend of (Applicant's). When asked about the friend, J_ M_, (Applicant's) first response was to deny even knowing him.

 When pressed on the matter and informed that M_ knew (Applicant), his response was "Oh, so now playing basketball with someone makes me guilty." Moreover-, when copies of GTCC slips were received Regency Mall merchants the signatures shared characteristics of (Applicant's) signature. His signature contained a large "swirl" on assorted admin paperwork prior to the incident. It suddenly changed once he learned we would be seeking copies of the credit card slips for signature comparison. We later discovered unauthorized charges were made in July 2000 on a GTCC issued to our former Sailor M_ J_W_, who was a loss to the command in March 2000 and whose card had been stored in our safe. The cash withdrawals were from a terminal in the Regency Mall where an attempt had also been made to use (Applicant's) card. This was clear evidence that someone from our Admin office initiated the GTCC thefts. All YN's in the Admin office were likewise questioned to no avail. Subsequently, after NCIS became involved in the case and questioned the YN's again, YNSN P_ made a sworn statement implicating YN2 (Applicant) in the unauthorized use of his own GTCC, but denied any knowledge of other cards being used. YN2 (Applicant) exercised his right to refuse to make a sworn statement or to allow agents to search his apartment, and terminated the interview.

(2) Regarding the use of the W_, M_, B_, and C_ credit cards: W_ was a loss to the command from March 2000. His credit card, which should have been destroyed, was stolen from the Admin safe and the associated paperwork for his card was also stolen/destroyed as a cover-up. Subsequently, the PIN to his card was changed on 20 July 2000 and $509.50 worth of charges accrued. When the unauthorized use was discovered in September 2000, we were able to cancel the card before more charges were made. M_ separated from the Navy in September 2000 and turned in his card to YN2 (Applicant) in August 2000, it was subsequently used or use was attempted during the same 21 Sep 00 to 17 Oct 00 period resulting in $522.47 in authorized charges/cash withdrawals. B_ retired in July 2000. His card, which should have destroyed was subsequently stolen from the Admin safe, the associated paperwork likewise stolen/destroyed. The PIN on the card was later changed on 14 Sep 00 from a phone number traced to YN2 (Applicant's) residence. It should be noted that (Applicant's) GTCC PIN had also been changed that same night less than an hour earlier, although the phone number was not recorded during the call. The card was then used during the period 30 Sep 00 to 26 Oct 00 for charges/withdrawals totaling $1325.04. C_'s card was likewise stolen from the Admin safe and during the period 25 Sep 00 to 26 Oct 00 $1225.20 was charged/withdrawn on the account.

(3) On the dereliction of duty and fraud associated with falsifying the leave logs: YN2 (Applicant) was in charge of the leave logs from Jan to May 00 and again from Jul to Nov 00. We discovered irregularities in the program in November. The logs had been falsely marked to indicate that leave papers had been submitted to PSD for processing and the come-back computer print out had verified the leave was charged. A subsequent audit for the previous 12 months involving over 900 sets of leave papers uncovered a clear pattern of misconduct. Log entries in the case of eight sets of leave papers totaling 68 days had clearly been doctored to indicate that leave had been charged, when in fact the papers never even reached PSD. Among the eight not charged were leave papers for (Applicant) (one set) and his known friends, two sets for YN2 J_, two sets for BM2 B_, and one set for BM2 D_. The other- two were for junior members of my Maintenance Department whose relationship with (Applicant) is unknown. In each case other leave papers submitted to PSD on the very same date were all properly charged. Only the ones for Petty Officer (Applicant) and his associates managed to "fall through the cracks."

(4) Given the mounting evidence, I believed these charges constituted a serious breach of trust and confidence and the matter could not go unresolved. I was convinced the evidence clearly pointed towards Petty officer (Applicant). Accordingly, I attempted to hear the case at Captain's Mast. When read his 31b rights on 18 January 2001, he exercised his right to remain silent and to refuse non-judicial punishment. I contemplated sending the case to a special court-martial. However, after consulting with the Trial Service Office staff I was convinced an Administrative Separation Board was the appropriate venue as "preponderance of evidence" against Petty Officer (Applicant) was, in my opinion, already clearly established. In view of the integrity aspects of these offenses, YN2 (Applicant) lost my trust and confidence to handle classified material or sensitive matters in my administrative office. Lacking or refusing an explanation for the evidence, it was imperative that he be separated from the U.S. Navy or at least removed from the Yeoman rating. Therefore, an Administrative Separation Board was appointed to review the evidence, hear the testimony, and make an independent recommendation in the matter.

(5) The Counsel for the Respondent (CFR) has submitted a Letter of Deficiency at enclosure (2) for consideration. CFR argues the government failed to prove its case by a preponderance of evidence and further claims several deficiencies occurred during the proceedings that warrant overturning the Board's findings. I have reviewed each point carefully and do not concur with Counsel for the Respondent on any of the arguments.

Concerning the preponderance of evidence: Although the perpetrator made a concerted effort to cover his crimes; i.e. destroying paperwork, blocking cameras, and doctoring logs, everything points to YN2 (Applicant's) involvement. In addition to direct evidence in the form of a sworn statement implicating YN2 (Applicant) in the credit card scheme, the circumstantial evidence presented to the Board also points directly at (Applicant). If he did not act alone, the evidence shows he was clearly a conspirator in both the credit card and leave fraud. Even the testimony of the surprise defense witness YN3 C_ assigned to SUBASE Kings Bay suggests YN2 (Applicant's) involvement. C_ testified that his government credit card had been stolen in June 2000 while staying with his close friend YN2 (Applicant) and his roommate YNSN P_. He questioned both concerning the matter, and suspected P_. However, YNSN P_ made a sworn statement to NCIS implicating (Applicant) in the use of (Applicant's) own credit card, which he denied receiving. This begs a crucial question. If (Applicant) was not involved in the credit card scheme, why would he have not surfaced the C_ information to command investigators or NCIS during the preceding months of investigation? The evidence suggests the answer is, that (Applicant) was involved with the HSL 48 credit card fraud, possibly in conspiracy with P_ or others, and his best avenue to avoid accountability and prosecution was to remain silent. He offered no explanation or cooperation throughout and steadfastly maintained a "prove it" attitude from the outset.

The deficiencies claimed by CFR included, that the Board members were influenced to interpret the member's election to remain silent as a sign of guilt, the introduction of the (Applicant's) last periodic evaluation, and that members had access to the government exhibits before the Board convened. I will address each in turn.

A review of the transcript clearly reveals the Board members were never instructed that election to remain silent should be interpreted as a sign of quilt. On the contrary, they were repeatedly reminded by Counsel for the Respondent that a member's right to remain silent does not constitute evidence of guilt. Moreover, the Board members agreed with this admonishment and stated that they did not view silence as an indicator of guilt. The Recorder argued that the exhibits and testimony that included, in part, the fact that the member exercised his right to remain silent should not be thrown out of an Administrative Board as the CFR wanted. And the exhibits and testimony should be accorded whatever weight the Board members felt was warranted.

Regarding YN2 (Applicant's) last periodic evaluation: Counsel for the Respondent argues that although the Senior Member agreed to disallow the exhibit, its mere presentation for consideration by the government constituted inappropriate command influence. Moreover, CFR suggests the evaluation itself was illegal. There was no command influence. A performance evaluation is in no way surreptitious direction to an Admin Board. Board members had no prior substantive knowledge of events surrounding YN2 (Applicant), and no desired outcome was communicated in advance to the board. This was an appropriately prepared regular evaluation report required by Navy Instruction. Petty Officer (Applicant) was not subject to disciplinary or legal proceedings, such as a CO's NJP or court-martial. Per reference (b), Annex N, paragraph N-3, a. "Comments may be included on misconduct whenever the facts are clearly established to the reporting senior's satisfaction." Additionally, my Administrative Officer contacted the BUPERS evaluation policy branch, Pers-313, to confirm Navy regulations regarding periodic evaluations submitted on members pending an Administrative Separation Board.

Finally, the assertion that board members reviewed the government exhibits prior to convening was initially disturbing to me. However, through discussion with the Recorder and the Senior Member, whose statement is at enclosure (3), I learned there was nothing inappropriate or prejudicial in the manner the evidence was handled. The Recorder is responsible for providing a copy of the Recorder's guide to board members. The guide is required from the outset and is used to script the board and steer the process. The guide requires that the Recorder include exhibits to be used during the board. In preparation for the board, the Recorder placed the guide, including government exhibits, in front of each member's seat. As the board members arrived a few minutes early, they nonchalantly thumbed through some of the documents. This was just prior to Counsel for the Respondent entering the room and prior to the board being called to order. The time involved was less than five minutes and there was no discussion of the case. Members saw nothing they would not see once the board was formally commenced. While regrettable they glimpsed some of the documents of the Recorder's case before the Counsel for the Respondent entered the room, this innocent act caused no harm nor was in any way prejudicial to YN2 (Applicant's) defense. Moreover, it had no bearing on the findings.

(6) In conclusion, the volume of this record of proceedings and length of my comments are indicative of the administrative burden Petty Officer (Applicant) has caused this command. Over the course of the last eight months, hundreds of valuable man-hours have been expended by NCIS, TSO Mayport, and my command in investigating these offenses and facilitating the Administrative Separation Board. The evidence speaks for itself; YN2 (Applicant) has been involved in misconduct prejudicial to trust and integrity, and he is no longer suited for Naval service. I strongly concur with the Administrative Board's finding that he committed two counts of Misconduct-Commission of a Serious Offense and its recommendation that he be separated with an Other Than Honorable discharge.
010522:  Commander, Naval Region Southeast directed the Applicant's discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 010615 with a discharge characterization of general (under honorable conditions) for misconduct due to commission of a serious offense (A). The Board presumed regularity in the conduct of governmental affairs (B). 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).

Issue 1: The Applicant questions the legitimacy of his Administrative Discharge Board procedures. There is no evidence in the official record, nor did the Applicant provide any certifiable documentation to support his claim that there was an impropriety with his discharge processing, additionally, the Applicant failed to submit any evidence to mitigate the findings of his Administrative Discharge Board. Relief denied.

 Issues 2: The NDRB did note an administrative error on the original DD Form 214. Block 18, Remarks should read: “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 951127 UNTIL 990916.” Therefore, the enlistment period under consideration by the Board begins with the Applicant’s second enlistment period from 990917 until 010615. The receipt of commendatory awards and favorable performance evaluations during an Applicant’s enlistment, do not guarantee an honorable discharge. A characterization of service of under honorable conditions (general) is warranted when significant negative aspects of a service member’s conduct or performance of duty outweigh the positive aspects of the member’s service record. Therefore, the Board determined the Applicant’s discharge was proper and equitable. Relief denied.

Issue 3: T he NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service, to include the Naval Reserve, or any other branch of the Armed Forces. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter. Relief is therefore denied.

Issue 4: The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities or providing VA Educational Benefits. The Board’s charter limits its review to a determination on the propriety and equity of the discharge. In the Applicant’s case the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge was proper and equitable. An upgrade to honorable would be inappropriate. Relief denied.

T here 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 the service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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. Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. Evidence of continuing educational pursuits, a positive employment record, documentation of community service and certification of non-involvement with civil authorities are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.

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 additional documentation to support any claims of post-service accomplishments 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), Change 31, dated 20 Feb 01, effective 25 Jan 01 until Present, Article 1910-142 [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 " afls14.jag.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:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023      

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