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




ex-SKSR, USN
Docket No. ND04-01405

Applicant’s Request

The application for discharge review was received on 20040910. The Applicant requests the characterization of service received at the time of discharge changed to honorable or general (under honorable conditions). The Applicant requests a personal appearance hearing discharge review before the Board in the Washington, D.C. Metropolitan Area per telephone conversation with the Executive Secretary of the Naval Discharge Review Board on 20040910. The Applicant did not list a representative on the DD Form 293.

Decision

A personal appearance discharge review was conducted in Washington, D.C. Metropolitan area on 20050919. After a thorough review of all available 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 4 to 1 that the characterization of the discharge shall not change. The discharge shall remain Under Other Than Honorable Conditions in lieu of a trial by court-martial .

A personal appearance hearing discharge review was conducted in Washington, D.C. on YYYYMMDD. 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/IN LIEU OF TRIAL BY COURT MARTIAL, authority: NAVMILPERSMAN, Article 3630650.

If appropriate add the following:
The NDRB did note administrative error(s) on the original DD Form 214. Block 18, Remarks, should contain the following statement: "CONTINUOUS HONORABLE ACTIVE DUTY FROM 90NOV26 UNTIL 92NOV11". The Commander, Naval Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

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SPN CODE KFS

This is the correct shell for SEP-in-LIEU for the period 940722 until 961002. Narrative reason for separation: IN LIEU OF TRIAL BY COURT-MARTIAL.
In BUPERSINST 1900.8, a general discharge is written GENERAL (UNDER HONORABLE CONDITIONS).

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PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I request an upgrade because while I acknowledge that I did make mistakes in my naval career I’ve lived my life in a very honorable way since my discharge nine years ago. I counsel incarcerated youth in my current position. I would like to work for LAPD but would need a better discharge. Prior to my current position as a probation night custody officer I worked for the District Attorney’s office of Riverside County I also have participated in read-athons, clothing drives for the poor and fund raisers through my fraternity, Kappa Alpha Asi. I’m a family man with a wife of nine months, a house and I would like to finally put this issue behind me and only an upgrade in my discharge would really enable me to do so”

REMARKS: “I earned a bachelor’s degree in political science three years ago at Chapman University through night school. If LAPD doesn’t pan out I desire to go to law school at the University of Lavern School of Law.”

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Facsimile Transmission Form from Congressman J_ B_ dated September 04, 2004
Statement from Applicant (undated)
Character Reference Letter dated March 10, 2002 (unsigned)
Letter of Recommendation dated March 28, 2002
Letter of Recommendation dated October 19, 2003
Employment Reference Letter dated March 13, 2002
Character Reference Letter dated August 05, 2005 (unsigned)
Character Reference Letter dated August 24, 2005 (unsigned)
Character Reference Letter dated August 17, 2005 (unsigned)
Character Reference Letter dated August 23, 2005 (unsigned)
Character Reference Letter dated August 21, 2005
Contribution recognition, United Negro College Fund, Inc. dated June 01, 2005
Good Samaritan of the Year, Help Hospitalized Veterans organization
Character Reference Letter dated March 20, 2002 (C_L_P_)
Character Reference Letter dated March 03, 2002 (unsigned)
Character Reference E-Mail dated March 10, 2002 (unsigned)
Character Reference Letter dated March 20, 2002 (D_U_)
Character Reference Letter dated August 27, 2005
Character Reference Letter dated March 16, 2002 (unsigned)
Character Reference Letter dated September 03, 2005 (unsigned)
Character Reference Letter dated August 15, 2005 (unsigned)
Character Reference Letter dated December 10, 1996
Character Reference Letter dated December17, 1996
Witnessing Outstanding Work dated October 10, 2000
Witnessing Outstanding Work dated November 15, 2000
Statement of Academic Record, South East Metropolitan College dated December 08, 1999
Certified Computer Networking Support Specialist Program, Certificate of Completion dated August 24, 2000
Student transcript, Suffield College and University dated May 15, 1990
Boys & Girls Club 13 ^th Annual Del-fest flyer
Photocopy of plaque presented by Riverside County District Attorney’s Office Bureau of Investigations dated January 23, 2002
Letter of Appreciation from Riverside District Attorney’s Office Bureau of Investigations dated January 23, 2002




        

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PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

         Inactive: USNR (DEP)     901017 - 901125  COG
         Active: USN                        901126 - 921111  HON

Period of Service Under Review :

Date of Enlistment: 921112               Date of Discharge: 950308

Length of Service (years, months, days):

         Active: 02 03 24
         Inactive: None

Age at Entry: 27                          Years Contracted: 4

Education Level: 12                        AFQT: 35

Highest Rate: SK3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: 3.50 (5)             Behavior: 3.16 (5)                OTA: 3.12 (5)

Military Decorations: None

Unit/Campaign/Service Awards: NDSM

Days of Unauthorized Absence: 3

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

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority: NAVMILPERSMAN, Article 3630650.

Chronological Listing of Significant Service Events :

921112:  Reenlisted on board USS BAINBRIDGE (CGN-25), Norfolk, VA for 4 years.

930324:  Reported for duty, USS FLETCHER (DD-992), Pearl Harbor, HI.

930706:  NJP for violation of UCMJ, Article 90: Disobedience of Superior Commissioned Officer, violation of UCMJ, Article 86: Failure to go to appointed place of duty.
         Award: Forfeiture of $501.00 pay per month for 2 months, restriction and extra duty for 14 days, reduction to E-3 (suspended for 4 months). No indication of appeal in the record.

930707:  Retention Warning: Advised of deficiency (CO’s NJP 930706 for violation of UCMJ Article 86, Failure to go to place of duty and violation of UCMJ Article 90, Willful disobedience of Superior Commissioned Officer.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

930813:  NJP for violation of UCMJ, Article 132: Fraud against the United States.
         Award: Forfeiture of $456.00 pay per month for 2 months, restriction and extra duty for 30 days, reduction to E-2. No indication of appeal in the record.

930813:  Reduction to SKSN, suspended at CO’s NJP of 930706, vacated due to continued misconduct.

940415:  Reported for duty, Shore Intermediate Maintenance Activity (SIMA), Pearl Harbor, HI.

940615:  NJP for violation of UCMJ, Article 86: UA from 0630, 940527 to 0214, 940528.
         Award: Forfeiture of $400.00 pay per month for 2 months (suspended for 6 months), restriction and extra duty for 30 days, reduction to E-2 (suspended for 6 months). No indication of appeal in the record.

940628:  Retention Warning: Advised of deficiency (Violation of Articles 90, 132 and 86), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

941018:  Reduction in rate, forfeiture of $400.00 pay per month for 2 months awarded at CO’s NJP of 940615 vacated to due to continued misconduct.

941027:  NJP for violation of UCMJ, Article 86 (2 Specs), Spec 1: Did on or about 0630, 940805, without authority, absent himself from his place of duty at which he was required to be, to wit: SIMA PEARL HARBOR, and did remain so absent until he was apprehended on or about 1015, 940808; Spec 2: Did on or about 0830, 940718, without authority, absent himself from his place of duty, to wit: Medical appointment at Tripler AMC, and did remain so absent until he was apprehended on or about 1015, 940808; violation of UCMJ Article 92; violation of Article 107, and violation of Article 90.
         Award: Forfeiture of $416.00 pay per month for 2 months, restriction to the base for 60 days, reduction to E-1. No indication of appeal in the record.

950118:  Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial. He consulted with counsel and was fully advised of the implications of his request. The Applicant stated he understood the elements of the offenses with which he was charged, and admitted he was guilty of Charge I and its specifications; Charge III and its specifications; Charge IV and it specification, and Charge VI and the 4 specifications thereunder. The Applicant stated he was completely satisfied with the counsel he had received. The Applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veterans' benefits based upon his current enlistment, and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received there from may have a bearing.

950213:  Commanding Officer, SIMA Pearl Harbor, HI, requests Administrative discharge for SKSR Perkins with a characterization of under other than honorable conditions by reason of in lieu of trial by court martial

950221:  Commander Naval Surface Group, Middle Pacific, approved the request for an administrative separation in lieu of a trial by court-martial, and directed Applicant’s discharge.

950308:  Applicant discharged.

960722:  NDRB documentary record review Docket Number ND96-00257 conducted. Determination: discharge proper and equitable; relief not warranted.

970822:  Board for Corrections of Naval Records review conducted. Discharge deemed proper, no change warranted.

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PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19950308 under other than honorable conditions in lieu of a trial by court-martial (A and B). The Board presumed regularity in the conduct of governmental affairs (C). After a thorough review of all available records, sworn testimony, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (D and E).

When the service of a member of the U.S. Navy has met the standard of acceptable conduct and performance, it is appropriate to characterize his service as honorable. An under other than honorable conditions discharge is warranted when significant negative aspects of a member's conduct or performance outweigh the positive aspects of the member's military record. The Applicant’s service was marred by four nonjudicial punishment (NJP) proceedings. His first NJP resulted from a violation of UCMJ Article 90 (disobeying a commissioned officer) and a violation of UCMJ Article 86 (place of duty). The second NJP resulted from his violation of Article 132 (fraud against the United States). The third NJP followed a second violation of UCMJ Article 86 (unauthorized absence). The fourth NJP followed his third and fourth violations of Article 86 (unauthorized absence), violations of Article 90 (disobey a commissioned officer), Article 92 (failure to obey orders) and Article 107 (false official statement). However, the charge sheet listing the offense(s) that serve as grounds for the separation in lieu of trail by court martial is not in the Applicants record. Therefore, the Board presumed regularity in the conduct of governmental affairs, assuming that at least one of the charge(s) must have been punishable by a punitive discharge and if adjudicated by court martial could have resulted in a bad conduct discharge. The steps required to document the separation process were in the record. The Applicant admitted guilt and requested separation in lieu of trial by court-martial with a characterization of other than honorable. The Board found his under other than honorable conditions characterization appropriate. Relief is not warranted.

The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

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 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. The Applicant submitted the following documentation; 16 character references, five letters and certificates signifying good work ethic, college transcripts, certification of computer training, good samaritan of the year and verification of financial support to charity. The Board commends the Applicant’s personal achievements and recognized his public service through his work for the Boys and Girls Club, the district attorney’s office, as a San Bernardino County probation night custody officer, and his volunteer work through the Kappa Alpha Psi fraternity and other organizations. The numerous character references lead the Board to believe the Applicant is truly making a difference for youth in his community. However, a fter careful consideration the majority of the Board concluded the Applicant’s post-service achievements have been insufficient to mitigate his significant misconduct while in the Naval service. Relief denied.

The following if provided for the edification of the Applicant. The Applicant has exhausted his opportunities for review by the NDRB. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.


Pertinent Regulation/Law (at time of discharge)

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective
22 Jul 94 until 2 Oct 96, Article 3630650, PROCEDURES FOR PROCESSING ENLISTED PERSONNEL FOR SEPARATION IN LIEU OF TRIAL BY COURTMARTIAL.

B. A punitive bad conduct discharge may be adjudged for violation of the Uniform Code of Military Justice, Articles 92 (failure to obey), 90 (disobey superior commissioned officer), 107 (false official statements), and 132 (fraud against the United States) upon conviction by a Special or General Court-Martial, in accordance with the Manual for Courts-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 .

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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