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NAVY | DRB | 2004_Navy | ND04-00072
Original file (ND04-00072.rtf) Auto-classification: Denied


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

ex-OSSA, USN
Docket No. ND04-00072

Applicant’s Request
The application for discharge review was received on 20031014. The Applicant requests the 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 list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040712. 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)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630605.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues, as stated

 Applicant’s issues, as stated on the application:

1. “I feel that at a point in my naval career I was “blackballed.” I was being singled out and discriminated against. I submitted a memorandum dtd Apr 95 that was circulated and it was about how to discharge me without the USS McKee (AS-41) receiving an Art. 138 report filed against them. When I was stationed Bremerton Naval Shipyard, I received the same type of treatment from that command. I was discharged with only two months left in the service. I was considering reenlisting. I feel that was would have received a honorable discharge if I wouldn't have received this type of embarrassing treatment by the US Navy.

2. “I am respectfully requesting that the Naval Discharge Review Board considers my post-service conduct as a part of discharge review. Since I have been out of the Navy; I have obtained three (3) Associate Degrees and a Certificate of Achievement. I have received an Associate of Arts in History and Associate of Arts in Black Studies from San Diego City College in June 2001. Also, I have received an Associate of Science in Legal Studies (also known as Paralegal Studies) from San Diego Miramar College in May 2003. Along with my Associate of Science degree, I received a Certificate of Achievement in Legal Studies with Honors (Cum Laude) from San Diego Miramar College in May 2003. I am submitting copies of my Associate of Arts degrees and my Certificate of Achievement as supporting documentation.

After completing my Legal Studies degree and certification, I found me passion for learning the American legal system. I realized that rue heart lies with wanting to be an attorney, not just a paralegal. I am on the proper course for being an attorney. I am currently a student at Howard University pursuing two (2) Bachelor of Arts degrees. I am double majoring in Political Science with a Pre Law emphasis and History and minoring in Sociology with an emphasis in the Administration of Justice. I am submitting copies of my Scheme of Graduation as supporting documentation.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Fall Class Schedule from Howard University (2 pages)
Copy of Howard University Student Identification Card
Memorandum dated April 5, 1995
Letter from Applicant dated November 13, 2003
Copy of Associate in Arts Degree (Black Studies) from San Diego City College
Copy of Associate in Arts Degree (History) from San Diego City College
Copy of Associate in Science Degree (Legal Assistant) from San Diego Miramar College
Copy of Certificate of Achievement from San Diego Miramar College (Legal Assistant)
Copy of General Education Requirement Listing (2 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     930122 - 930125  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 930126               Date of Discharge: 961112

 Length of Service (years, months, days):

         Active: 03 09 17
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 52

 Highest Rate: OSSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.33 (3)    Behavior: 3.40 (3)                OTA: 3.40

 Military Decorations: None
Unit/Campaign/Service Awards: Navy"E", NDSM

 Days of Unauthorized Absence: 2

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630605.

 Chronological Listing of Significant Service Events :

940202:  NJP for violation of UCMJ, Article 86: Failure to go to appointed place of duty; violation of UCMJ, Article 107: (2 Specifications), false official statements.
         Award: NAVPERS 1070/607 or NAVPER 1070/613 missing from service record. No indication of appeal in the record.
         [Extracted from CO’s letter dated 960905]

940303:  NJP for violation of UCMJ, Article 86: Abandoning a watch.
         Award: NAVPERS 1070/607 or NAVPER 1070/613 missing from service record. No indication of appeal in the record.
         [Extracted from CO’s letter dated 960905].

940308:  Retention Warning: Advised of deficiency (Violation of the UCMJ, Article 86, Abandoning watch or guard as evidenced by CO's NJP held on 940303), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
960719:  NJP for violation of UCMJ, Article 86: On or about 960623 absent herself from place of duty until 960624, violation of UCMJ Article 107: On or about 960624 intend to deceive second class petty officer known to be false.
         Award: Restriction to PSNS for 14 days, reduction to E-2. No indication of appeal in the record.
960816:  Applicant notified of intended recommendation for discharge general under honorable conditions by reason of misconduct due to pattern of misconduct as evidenced by CO's NJP on 940202, for violation of the UCMJ, Article 86, failure to go to appointed place of duty and Article 107 (2 Specifications), false official statement; CO's NJP on 940303, for violation of the UCMJ, Article 86, abandoning a watch; and CO's NJP on 960719, for violation of the UCMJ, Article 86, absent from appointed place of duty and Article 107, false official statement and misconduct due to commission of a serious offense as evidenced by CO's NJP on 940202, for violation of the UCMJ, Article 86, failure to go to appointed place of duty and Article 107 (2 Specifications), false official statement; CO's NJP on 940303, for violation of the UCMJ, Article 86, abandoning a watch; and CO's NJP on 960719, for violation of the UCMJ, Article 86, absent from appointed place of duty and Article 107, false official statement .
960827:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to submit statements on own behalf either verbally or in writing and the right to obtain copies of the documents used to support the basis for the separation.
960905:  Commanding Officer recommended discharge general under honorable conditions by reason of misconduct due to pattern of misconduct as evidenced by CO's NJP on 940202, for violation of the UCMJ, Article 86, failure to go to appointed place of duty and Article 107 (2 Specifications), false official statement; CO's NJP on 940303, for violation of the UCMJ, Article 86, abandoning a watch; and CO's NJP on 960719, for violation of the UCMJ, Article 86, absent from appointed place of duty and Article 107, false official statement and misconduct due to commission of a serious offense as evidenced by CO's NJP on 940202, for violation of the UCMJ, Article 86, failure to go to appointed place of duty and Article 107 (2 Specifications), false official statement; CO's NJP on 940303, for violation of the UCMJ, Article 86, abandoning a watch; and CO's NJP on 960719, for violation of the UCMJ, Article 86, absent from appointed place of duty and Article 107, false official statement. Commanding Officer’s comments: [I believe that OSSA P_ (Applicant) is either incapable of adhering to the rules and regulation of the command and the Navy or she is simply unwilling to conduct herself in a manner conductive to good order and discipline.]

960909:  To UA.

960911:  From UA (2days)

961021:  Commanding Officer, Enlisted Personnel, Puget Sound Naval authorized the Applicant's discharge general under honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19961112 general under honorable conditions for misconduct due to commission of a serious offense (A & B). The Board presumed regularity in the conduct of governmental affairs (C). 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 (D and E).

Issue 1. When the service of a member of 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 three nonjudicial punishment proceedings for six violations of the UCMJ, to include violations of Articles 86 and 107. The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her 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 her characterization of service. Relief is not warranted.

The Applicant’s claim, that she was “blackballed” and the documents she submitted were not sufficient to overturn the presumption of regularity. While she may feel that her “embarrassing treatment” was the underlying cause of her misconduct, the record clearly reflects her willful misconduct and demonstrated she was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for her conduct or that she should not be held accountable for her actions. Relief on this basis is denied.

Issue 2. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (C, Part IV). 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 error or inequity must have been found to exist 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 proof of educational pursuits as documentation of her post-service. The applicant's efforts need to be more encompassing than those provided. For example, the applicant could have produced evidence of verifiable employment, documentation of community service, certification of non-involvement with civil authorities and family relationships in order for consideration for clemency based on post-service conduct.

At this time, the applicant has not provided sufficient documentation of
good character and conduct. Therefore, no relief will be granted. She is encouraged to continue with her pursuits and is reminded that she is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Relief denied.


Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective
03 Oct 96 until 971212, Article 3630605, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B. In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 107, making a false official statement, and if adjudged at a Special or General Court Martial

C. 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.

D. 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.

E. 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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