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NAVY | DRB | 2004_Navy | ND04-01255
Original file (ND04-01255.rtf) Auto-classification: Denied


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


ex-GMSA, USN
Docket No. ND04-01431

Applicant’s Request
The application for discharge review was received on 20040913. 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 review. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20041222. 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. “I FEEL THAT MY DEPARTMENTAL OFFICER WAS UNJUST. I HAD ALREADY SERVED 15 DAYS OF BRIG TIME FOR MY ACTIONS. I WAS TOLD AT COURTMARSHAL THAT I WOULD BE RETAINED IN THE NAVY. NOT THROWN INTO DOUBLE JEPARDY. I WAS ALSO RUSHED OFF OF THE USS GEORGE WASHINGTON AND NOT GIVEN MY MEDICAL, DENTAL OR SERVICE RECORDS. I WAS NOT ESCORTED TO THE GATES OF THE BASE. SECURITY STOPPED A TAXI AND MADE ME PAY 4 DOLLARS OF MY MONEY TO GET OFF BASE. I THEN HAD TO WALK 5 MILES TO MY APARTMENT WITH MY PERSONAL BELONGINGS BECAUSE I WAS NOT ALLOWED TO CALL ANYONE TO COME PICK ME UP. AND I HAD NO MONEY FOR A PAY PHONE.”
2. I FEEL THAT I WAS TREATED WRONGLY IN THIS WHOLE SITUATION AND THE ACTIONS AND PROCEDURES OF THE USS GEORGE WASHINGTON WERE UNJUST AND VERY UNPROFESSIONAL. EVEN IF MY DISCHARGE IS NOT CHANGED I FEEL THAT THEY SHOULD UNDER GO TRAINING ON PROPER PROCEDURES OF DISCHARGING PERSONNEL.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     000525 - 010528  COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 010529               Date of Discharge: 030923

 Length of Service (years, months, days):
         Active: 02 03 25         (Includes lost time)
         Inactive: None
Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 55
Highest Rate: GMSN

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 3.00 (1)    Behavior: 2.00 (1)                OTA : 2.83

 Military Decorations: None
Unit/Campaign/Service Awards: SSDR, AFEM, BER, NDSM

 Days of Unauthorized Absence: 106
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 :
020925:  Retention Warning: Advised of deficiency VUCMJ, Article 86 (2 specs) – Unauthorized absence from appointed place of duty and Article 92 (2 specs) – Failure to obey lawful order and lawful written order, notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

020925:  NJP for violation of UCMJ, Article 86 (2 Specs): Unauthorized absence,
 violation of UCMJ Article 92 (2 Specs): Failure to obey a lawful order.
          Award: Forfeiture of $200.00 pay per month for 1 month, restriction and extra duty for 15 days, reduction to E-1 (suspended for 6 months). No indication of appeal in the record.
030710:  Summary Court-Martial:
         Charge I: Violation of the UCMJ, Article 86 (5 Specs): Unauthorized absence from on or about 030207, 030210, on or about 030212 to on or about 030312, on or about 030314 to on or about 030328, and on or about 030410 to on or about 030614.
          Charge II: Violation of the UCMJ, Article 87: Missing ship’s movement on or about 030225.
          Findings: To Charge I and II, findings of guilty.
         Sentence: Forfeiture of $645.00 per month for 1 month, confinement for 15 days, reduction to E-2.
          CA 030821: Sentence approved and ordered executed. Member elected to voluntarily, knowingly, and intelligently waive his right to confer with counsel and was not represented by counsel.
030914:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service possible is under other than honorable conditions by reason of misconduct due to the commission of a serious offense and pattern of misconduct.
030914:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
030919:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by his punishments under the Uniform Code of Military Justice and by reason of misconduct due to a commission of a serious offense as evidenced by his Summary Court-Martial on 030710, for violation of UCMJ, Article 86, unauthorized absence from on or about 030410 to on or about 030614. Commanding Officer’s comments (verbatim): GMSA P_ (Applicant), has become an administrative burden to the command. He has received over 16 counseling’s, and a page 13 counseling and warning in an effort to get his career on the right track. His behavior proves that he is either incapable or unwilling to conform to military standards. His behavior is totally incompatible with the good order and discipline of the Naval Service. I recommend that GMSA P_ (Applicant) be separated from the Naval Service with an Other than Honorable discharge.
030922:  Commander, Carrier Group EIGHT authorized 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 20030923 under other than 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: Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident during the Applicant’s enlistment. The Applicant’s assertion that he was subjected to “double jeopardy” is without merit. This doctrine prohibits an individual being subjected to criminal prosecution twice for the same offense. It does not prohibit a member from being processed for administrative separation following a court-martial since administrative separation is not a criminal process. For this reason, decisions regarding retention made by a court-martial are not binding on administrative separation authorities. The Applicant may contact the Department of Veterans Affairs – Service Medical Records Center to receive copies of his service and medical records. Relief denied.

Issue 2: A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor.
The Applicant’s service was marred by award of nonjudicial punishment (NJP) on one occasion for violations of Articles 86 and 92 of the UCMJ, and a summary court-martial on another occasion for violations of Articles 86 and 87 (Missing ship’s movement), which is considered a commission of a serious offense of the UCMJ. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service. 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 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.


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

 D. 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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