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NAVY | DRB | 2004_Navy | ND04-01012
Original file (ND04-01012.rtf) Auto-classification: Denied


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

ex-HN, USN
Docket No. ND04-01012

Applicant’s Request
The application for discharge review was received on 20040610. The Applicant requested the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requested a documentary record review. The Applicant did not list a representative on his DD Form 293. Subsequent to the application, the Applicant obtained representation from the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050201. 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. “First time offence within a 18 month period

To whom this may concern:

I would first like to thank you for taking the time to review my case and considering my discharge upgrade. Next I would like to tell you about the situation that I put myself in.

My roommate D_ B_ from Great Lakes got put on 45/45 because he was underage drinking, had an open container in the car, and DUI. Somehow his pay had gotten messed up and he asked me to borrow $230. I told him that if I gave him the money that he would have to pay me back. He said that he would with no problem. No written agreement was made between the two of us. I didn’t feel the need for one because we were friends and roommates. All of this happened around the end of June 2002.

Around the end of September 2002, I was to move off base with my co-worker R_ P_. I asked B_ if I could get the money back that I had lent to him. He told me that he could write me a check and that it should be good because we were about to get paid. I started moving out of the barracks and I asked for my money again. He told me that he had written me a check and that I must have packed it with the rest of my things. I went to my new apartment and looked for it I couldn’t find it. I started getting upset because I was figuring out that he was sending me in circles and that he wasn’t intending to pay me back. I confronted him one last time and asked him for my money because the check wasn’t at my apartment nor was it in the room. We got into an argument and then he left the room. I noticed that his check book was sitting on night stand. I took a check and went directly to the bank. While standing in line I wrote the check out to myself for $230, the amount that I had lent to him a couple of months before, I cashed it and had the money put in to my savings account.

This was a immoral decision that anyone could have made. I understand what I did wrong. The first thing that I did wrong was I didn’t make a written statement of some sort between B_ and myself. The next thing that I did wrong was I took matters into my own hands, and the way I went about getting my money back was all wrong. I should have taken my problem to my chain of command, or to small claims court. I truly regret the way I handled my situation. $230 wasn’t worth my career.

As part of my punishment I had to repay all of the money taken from D_, reduction in rank, forfeiture of $500 for 5 months, and confinement for no more than 60 days. The reason I got this punishment is because everyone said that I could be rehabilitated, and still be the great Corpsman that I was turning out to be. They saw what I am capable of. Without my Chain of Commands testimony, I would have been sentenced to a Bad Conduct Discharge.

I took my punishment as a lesson learned. I was looking forward to returning to the fleet after my confinement period. I am still looking forward to the day I can return if my discharge should be upgraded.

I hope that you can see from my letters and my confessions while on trial that I have really learned my lesson. I know that I didn’t hold up the Core Values of Honor, Courage, and Commitment, or the RTC Maxim pf “I will not lie, cheat, or steal nor tolerate those among us who do,” but I would like to prove myself. I was a great asset to my clinic in both Great Lakes, and in Norfolk. I was a hard worker. I didn’t let my regretful decision keep me down. I took it in stride and kept going the only way I knew how, being a great Sailor.

The punishment that I was dealt was more than enough to defer me from any more wrong doings. Getting discharged wasn’t part of my punishment. I was supposed to return to the fleet after it was all said and done. Well, it’s all said and done and I’m no longer part of the World’s Finest Navy. I know that I tarnished my trust ability, but I think that I refined it a little when I started working at the Sewell’s Point Clinic at Norfolk Naval Station. I hope that you can see that I know that I made a awful decision, and I know now how I can deal with that situation or any situation if it should arise again. I’m ready to close that chapter in my life and move on.

My first Chain of Command of Naval Hospital Great Lakes, the Administrative Separation Board, my Chain at Sewell’s Point Branch Medical Clinic, and TPU Norfolk all saw that my immoral act wasn’t within my character. That is why they all recommended retention. I hope that you will review my case and take their word about my rehabilitative ability. I hope that you will have the utmost confidence in me the same way my peers, co-workers and Chain of Commands had for me. With your blessings I would like to have my discharge upgraded, and continue serving the United States of America in the medical field of the Armed Forces.

Once again thank you for you time and your consideration.

Sincerely,
(signed)
C_ L. G_ (Applicant)”

 The American Legion did not provide any issues.






Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s Confinement Order, dated January 28, 2003
Corrected: Results of Trial, dated January 28, 2003 (2 pages)
Applicant’s DD Form 214 (Member Request Copy 4)
Letter from Brig Disposition Board, dated March 10, 2003 (2 pages)
Memorandum from Admin Officer, undated
Character reference, dated February 6, 2004
Military Justice 101 from Online Part II, dated 3/22/2004 (2 pages)
Applicant’s DD Form 214 (Member 1)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     010627 – 011211  COG
         Active:                            None                       HON

 Period of Service Under Review :
Date of Enlistment: 011212               Date of Discharge: 030829

 Length of Service (years, months, days):

         Active: 01 08 18 (Does not account for lost time.)
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4 (12 months extension)

 Education Level: 12                        AFQT: 47

 Highest Rate: HN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF*                 Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: None

 * No marks found in Applicant’s service record.
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 :

030128:  Special Court Martial:
         Charge I: violation of the UCMJ, Article 121 (2 Specs):
         Specification 1: Did … steal a blank draft upon Navy Federal Credit Union, of some value, the property of …
         Specification 2: Did … steal U.S. Currency, of a value of $230.00, the property of Navy Federal Credit Union.
         Charge II: violation of the UCMJ, Article 123 (2 Specs):
         Specification 1: Did … with intent to defraud, falsely make and uttered a draft upon NFCU.
         Specification 2: Did … with intent to defraud, utter a certain draft bearing the number 137 upon Navy Federal Credit Union, which said draft would, if genuine, apparently operate to the legal harm of another, then knowing the signature, on said draft had been falsely made.
         Finding: to Charge I and specifications thereunder, guilty, Charge II and specifications merged, guilty.
         Sentence: Confinement for a period of 4 months, forfeiture of $500.00 per month for 5 months, reduction to E-1.
         CA 030417: Sentence approved and ordered executed, however, the execution of that part of the sentence extending to confinement in excess of 60 days is suspended for a period of 12 months from the date of January 28, 2003, at which time, unless the suspension is sooner vacated, the suspended part of the sentence will be remitted without further action.

030128:  To confinement. [Extracted from Applicants supporting documents.]

030318:  From confinement. [Extracted from Applicants supporting documents.]

030321:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
030321:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

 030522:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed a serious offense, that the misconduct warranted suspended separation for 12 months, and recommended characterization of discharge under other than honorable conditions.

030711:  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): HR G_ (Applicant) was transferred to Transient Personnel Unit, Norfolk for administrative separation processing after being released from Naval Brig, Norfolk. He requested and was granted an Administrative Board. The Administrative Board voted unanimously that HR G_ (Applicant) did commit Misconduct due to Commission of a Serious Offense. Although, not condoning HR G_ (Applicant) misconduct, the Administrative Board took into account the extenuating circumstances surrounding his offense, the recommendations of his previous command, and his performance and conduct while assigned to Sewell’s Point Branch Clinic, Norfolk, VA. A review of the Administrative Board proceedings revealed glowing comments on HR G_ (Applicant) performance from his chain of command. The Board recommended a suspended separation. After reading and careful examination of the Administrative Board’s Report, I concur with the Board members and recommend a suspended separation. I think this Sailor can be salvaged and make a meaningful contribution to the Navy.

030730:  CNPC directed the Applicant's discharge under other than 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 20030829 under other than honorable conditions for misconduct due to commission of a serious offense (A and 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: Concerning the Applicant’s desire to “continue serving the United States of America in the medical field of the Armed Forces,” the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service 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. This issue does not serve to provide a foundation upon which the Board can grant relief.

In the Applicant’s case, the Board discovered no impropriety or inequity and considers his discharge proper and equitable . A service characterization of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a Sailor. The record is devoid of any evidence the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. The Applicant’s service record is marred by being found guilty for larceny and forgery at a Special Court-Martial, charges to which he plead guilty . The Applicant’s summary of service clearly reflects his disobedience of the orders and directives regulating good order and discipline in the naval service, and demonstrated he was unsuitable for further service. An upgrade to general (under honorable conditions) would be inappropriate. Relief denied. For the Applicant’s edification, the record does not support the contention that his Administrative Discharge Board recommended “retention.”

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. The NDRB is authorized to consider outstanding 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. 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. At this time, the Applicant has not provided sufficient documentation of good character and conduct to mitigate his misconduct while on active duty. 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. 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), 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 121, Larceny and wrongful appropriation; or Article 123, Forgery if adjudged at a Special or General Court Martial
C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 E. 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



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