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NAVY | DRB | 2004_Navy | ND04-00912
Original file (ND04-00912.rtf) Auto-classification: Denied


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

ex-DN, USN
Docket No. ND04-00912

Applicant’s Request
The application for discharge review was received on 20040511. 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 20041103. 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 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

1. “Main issue is that I don’t feel that my complete service was taken into consideration on this decision.”

2. “2 out of 3 people on the board were from my command. 1 being my SWO & a general dentist.”

 3. “I feel that my discharge from active duty was unjust and unfair. I feel that my Commanding Officer had something very personal against me.

(Enclosed) CO's recommendation in regards to my OCS package is totally contradictive to the rest of the package; along with misspelled words on the front page.

(Enclosed) She stated that my performance was that of my current pay grade. (DEC. 2002) Earlier on my eval, of which I signed in Aug. 2002, stated that I was above standards and was recommended to promote now, ‘prime officer candidate’ I turned my package in Sept. 2002. To sum this up, I don’t really understand what happened from June to Dec for me to deserve this kind of recommendation. I even received a call from a LT. J_, from the board, who asked me what was going on between the CO and me. He also asked, "Why is she doing you like this?”

In July of 2002, I asked to be released from active duty due to the fact that I had been accepted into the OCS program in the Army. I received the o.k. from bupers via message traffic, but she came back and said no due to manning, (with 2 guys TAD to the base softball team.)

 Good Service Items:

 • Received Honorable Discharge, USN, Oct. 1997
• Received Honorable Discharge, USNR, Aug 1999
• Received Honorable Discharge, TN. Army National Guard, Aug. 1999
• No negative counseling chits
• All early promotes and must promote evaluations
• Several letters of appreciation and commendation
• Good Conduct Medal #1, June 1999
• Good Conduct Medal #2, August 2002
• Put in for LOC by Command for Admiral H_ signature, Apr. 2003
• Letters of retention from 4 Master Chiefs
• Received award for Partners in Education while in ~‘A” school
• Advancement to DT3 on first time around (most closed rate in the Navy)
• Received Associates Degree, General Education, Troy State University. Oct. 2001
• Received Bachelor’s Degree, Criminal Justice, Troy State University, June 2002
• Completed 12 hours Graduate Study, Counseling and Psychology, Troy State University, Aug 2003
• Received job offer, United States Secret Service, Feb. 2003

 ***All civilian charges were dropped and dismissed. (Burglary, Criminal mischief, and Battery) Prosecutor stated that this blown out of proportion and was going too far. He said he believed that I had received enough punishment from the Navy for 3 people. (Received a signed statement from victim that I never hit anybody, victim was just scared)

 ***From Capt Mast, I was charged with destruction of government property (for kicking in a door) (same as criminal mischief) I received reduction in rate/rank. I had to write 2 apology letters to the victims, and pay for the damages, for which came to $26.00. (First time ever been to Mast)

 Actual board

 2 out of the 3 people on my board, for the neutral opinion, were directly from my command. My counsel stated that “it was mighty funny that we are on a big air station and they couldn’t find anyone other than people in your command for a non-bias opinion.

 Milpers, 1910-142 (Separation by reason of misconduct — commission of a serious offense)

 -in my particular situation, none of it fall under any of the guidelines for mandatory processing.

 Milpers, 1910-222 (Suspension of separation)

 -was proposed by my counsel since I only had 4 months until my EAOS, and had never been in any trouble, wasn’t even taken into consideration, was stated by the senior member that this would be all or nothing.

 Milpers, 1910-302 (Consideration of characterization of Service)

 -I don’t think that any of my total service was taken into consideration, I still think that this whole decision was made off of this one incident that they tried to make seems as if it was so bad.

 Summary - I think that his decision, supported by strong persuasion, was based on this one particular incident and not my complete service record. I think that my record truly speaks for itself. My counsel stated that he couldn’t believe that they were trying to do me like this. Also, that he had a client next door with a second DUI, who was getting off better than me. I know what I did was wrong, and have accepted that, now I’m making the necessary steps to prove myself.

I think that it is very clear that someone had a personal problem with me. I honestly can say with another chance in the reserves, I can make it clear that I am dedicated, committed, and a very professional sailor. And after giving over 7 good years of my life to this organization, I feel that I deserve at least another shot. Thank you.
J_ L_ H_ ( Applicant )”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD214
Sections from MILPERSMAN 1910
6 Performance Evaluations
Good Conduct Award dtd 990608
Good Conduct Award dtd 020826
Service record page 11
Letter of Commendation
Letter of Appreciation dtd 021118
Certificate of Recognition
NAVPERS 1070/613
Ltr frm Dept of the Treasury
Ltr from ABCM J_ C_ dtd 030616
Ltr from MACM H_ H_ to Admin Board
Ltr from ABCM R_ dtd 030617
Ltr from DCCM R_ R_ dtd 030613
Applicant’s Application Package to Officer Candidate School (65 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR            930806 - 940605  To Report ActDu
         Active: USNR              940609 - 970908  Rel ActDu (Hon)
         Inactive: USNR            970909 - 990825  To Reenlist USN

 Period of Service Under Review :
Date of Enlistment: 990826               Date of Discharge: 030801

 Length of Service (years, months, days):

         Active: 04 11 13
         Inactive: None

 Age at Entry: 23                          Years Contracted: 4 (36 months extension)

 Education Level: 12                        AFQT: 61

 Highest Rate: DT3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.80 (5)    Behavior: 3.40 (5)                OTA: 3.59

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM (2), GCM (2), B’E’R, SSDR (2)

 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 :

030426:  Applicant charged with the following offences by Escambia County Sheriffs Office:
         First Degree Misdemeanor: Battery.
         Second Degree Misdemeanor: Damage property.
         Second Degree Felony: Burglary.
030506:  NJP for violation of UCMJ, Article 108: Willful destruction of military property, violation of UCMJ, Article 134: Disorderly conduct.
         Award: Reduced to E-3. No indication of appeal in the record.
         [Extracted in part from CO’s letter of 030805.]
030507:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
030507:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
030620:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed a serious offense and that the misconduct warranted separation. The Board, by a vote of 2 to 1, recommended a GENERAL (UNDER HONORABLE CONDITIONS) discharge.

030805:  Commanding Officer recommended a GENERAL (UNDER HONORABLE CONDITIONS discharge by reason of misconduct due to the commission of a serious offense.

030707:  CO NDCGC directed the Applicant's GENERAL (UNDER HONORABLE CONDITIONS) discharge 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 awarded a General (under honorable conditions) discharge on 20030801 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).

Issues 1 & 3. The Applicant states that he does not feel his “complete service was taken into consideration on this decision.” 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. The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for destruction of military property and disorderly conduct, thus substantiating the misconduct for which he was separated. Regulations limit the Board’s 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 consider his discharge proper and equitable. Relief denied.

Issue 2. The Board found no evidence of impropriety or inequity in the composition of the Applicant’s Administrative Discharge Board. There are no regulations requiring that members of the Board be from outside the servicemember’s unit, nor is there a requirement for specialty or occupation of board members. 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. 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 nonjudicial punishment proceedings for violations of Articles 108 and 134 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 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, however, 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 any documentation for the Board to consider. Relief denied.

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. 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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