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NAVY | DRB | 2004_Navy | ND04-00344
Original file (ND04-00344.rtf) Auto-classification: Denied


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


ex-MSSN, USN
Docket No. ND04-00344

Applicant’s Request
The application for discharge review was received on 20031208. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. 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 20040910. 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/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated
Applicant’s issues, as stated on the application:

 1. “My discharge is improper because of the following reasons listed below, I have provided several documents in which I believe to be my favor and support my claim of an injustice. In my 67mo. of active duty service. I’ve had no other disciplinary action taken against me. I believe my discharge in part was the result of a failed line of communication between myself and my COC. NJP was strickly used for the purpose of punishment, instead of helping me get back on track as indicated in the included Navy Times article
My COC failed to mention any of the navy programs specificially designed for troubled but yet salvageable sailors such as myself. I only learned of these programs after my dicharge. My DIVO along with other membes of my COC stated that no such means of rehabilitation were availiable to help me, I have since learned this to be untrue, there are plenty of resources the navy offers E.G. The Bearings Program,Correctional Custody at Naval Subbase Bango or the Second Chance Program. The following documents provide efficient information on why my discharge should be changed and re-entry as MS2 should also be considered. ITEMIZED LIST OF CHECKS: Highlights checks represent checks wrote by myself in one day, this is pointed out for two reasons;l. the 7 checks have a total of $l,017.53, far from the “several thousands” as claimed by Chief S_. 2. Dates the checks were wrote clearly chow that they were all wrote in early to mid of 2002, my COC has stated that a continuation occured well into 2003, this is false. BANKRUPTCY PAPERS: Shows file date.discharge date and creditors including Wal-Mart and FredMeyer..note..account with Fred Myer also includes debt from my wifes previous marriage. My COC knew of this ahead of time and was given a copy when we filed. No debts were created after 04 2002. There has been no checking accounts opened since then. COC COMMENTS: Lt. H_: Claims are stated false, the summons to appear was an unfortunate debt to the commissary in San Diego while still stationed there, the debt along with a $100 fine has been paid. The navy did and still does have the means to “rehabilitate” a sailor, my presence was always looked at as a burden or hinderence, this is no way to help. MSCM B_: I had no problems before arriving to NAS Whidby Island. Counseling consisted only of constant yelling along with put downs and degrading. there was never an appoach of willfulness to actually help. Chief S_: Numerous hours were spent in the wrong direction, financial counseling through the relief society offered only a budget plan for future money issues, this was no help to my current situation and they do not help pay debts. LPO L_: I only question whether or not this is his actual statement, he was on leave during the time frame. CDR C_: Again, financial couseling offered was that of no help to my situation. I explained this to the command. I explained several times what and why I did the things I did with the checks situation. COUNSELING CHIT FROM MSCM B_: I belive this to be wrote not only undeserving but as well as unjustly. My claims for my E-5 advancement were warrented and I only pursued it. LETTER FROM BOARD OF CORRECTIONS: Shows my claim to be true and derserving. I recieved this only after MSCM B_ wrote me a counseling chit and after my discharge. EVAL’S: Shows character from both duty sations as well as recommdations to promote. LETTER FROM CO OF NAS WHIDBEY ISLAND: Self-explanitory. STATEMENT FROM EMPLOYER: This is my current employer. STATEMENTS FROM SPOUSE: Describes in own her words of what happened. NAVY TIMES ARTICLE: This story not only gives me hope but also shows that the navy does offer many roads to help a sailor, the problem is that if the COC does not make a person aware of these other courses how does one take advantage of these programs. I would like to say that I do have a great deal of respect for the navy, what it stands for along with its values. Honor, Courage and Committment are 3 very powerful words to me and even now as a civiallian I do my best to follow there meaning. I believe that people do deserve a second chance, to be able to (re) prove themselves as an honest individual. I can be a positive sailor who can help fellow sailors with the same circumstances. Thank you for your time and consideration.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Itemized list of checks
Bankruptcy paperwork
 Chain of Command comments
 Copy of counseling chit from MSCM B_
Letter from Board For Correction of Naval Records, dated November 13, 2003
 Copy of Evaluation from last two duty stations dated June 13, 2002, November 26, 2001 and June 15, 2001
 Letter of appreciation from Commanding Officer, Naval Air Station Whidbey Island, dated July 23, 2002
 Statement from employer, dated November 17, 2003
 Statement from spouse, dated November 24, 2003, unsigned
 Article from Navy Times (November 10, 2003 issue)
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     970918 - 980112  COG
         Active: USN                        980113 - 010619  HON
Period of Service Under Review :
Date of Enlistment: 010620               Date of Discharge: 030808

 Length of Service (years, months, days):
         Active: 02 01 19
          Inactive: None
Age at Entry: 19                          Years Contracted: 4

 Education Level: 11 GED           AFQT: 36
Highest Rate: MS3

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 3.00 (3)    Behavior: 2.00 (3)                OTA: 2.84
Military Decorations: None

 Unit/Campaign/Service Awards: GCM, NDSM
Days of Unauthorized Absence: None
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605).
Chronological Listing of Significant Service Events :

030304:  Civil Conviction: United States District Court for the Western District of Washington, Bellingham, WA for violation of unlawful issuance of a check in the amount of $11.00.
 Sentence: Fined $100.00.
030602:  Counseling: Advised of deficiency (false official claim and or statement.), notified of corrective actions and assistance available.
030717:  NJP for violation of UCMJ, Article 134 (4 specs): (1 and 2) Check, worthless making and uttering by dishonorably failing to maintain funds, (3 and 4): Debt, dishonorably failing to pay.
          Date of offenses: January 6, 2002 to present.
         Award: Forfeiture of ½ months pay per month for 2 months, restriction and extra duty for 45 days, reduction to MSSN. Forfeiture suspended for 6 months. No indication of appeal in the record.
030717:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
030717:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
030718:  Commanding Officer directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. Commanding Officer’s Comments: [MSSN W_ paid only $47.00 to Walmart and nothing to Fred Meyer. The command assisted MSSN W_ in getting help from the Command Financial Specialist and Navy-Marine Corps Relief Society; however, MSSN Williams still did not make any attempt to pay back the back to these two companies.]
031113:  BCNR [Upon review and consideration of all evidence of record, and especially in light of the contents of [NPC memorandum 1160 Ser 811/490 of October 2003], the board finds the existence of an injustice warranting the following corrective action: That [Applicant’s] naval record be corrected, where appropriate, to show that: a. The reenlistment executed on or about 20 June 2001 was under the provisions of the STAR program. b. He was advanced to petty officer second class effective 16 June 2002. c. That a copy of this Report of Proceedings be filed in [Applicant’s] naval record.]

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030808 under other than 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. The Applicant states his discharge was based on one isolated incident in “67 months.” Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. 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 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 nonjudicial punishment proceedings for violations of Article 134 of the UCMJ and a civil conviction. 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 contends that his problems in the Navy can be attributed to not being afforded “any of the navy programs specifically designed for troubled but yet salvageable sailors such as myself.” While he may feel that his chain of command did not afford him ample opportunity to correct his financial problems, the record reflects the Command’s referral of the Applicant to the Navy-Marine Corps Relief Society and the command financial specialist. Further, the record clearly reflects the Applicant’s willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

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 the service. 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 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. At this time, the Applicant has not provided sufficient documentation for the Board to consider an upgrade.

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. 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 Present, Article 1910-142 [formerly 3630605]. SEPARATION 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 134, for uttering worthless checks, 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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