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NAVY | DRB | 2004_Navy | ND04-01437
Original file (ND04-01437.rtf) Auto-classification: Denied


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


ex-FA, USN
Docket No. ND04-01437

Applicant’s Request
The application for discharge review was received on 20040913. The Applicant requested the characterization of service received at the time of discharge be changed to honorable. The Applicant requested a documentary record review. The Applicant did not list a representative on his DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050107. 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/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.






PART I - APPLICANT’S ISSUES AND DOCUMENTATION



Applicant’s issues, as stated on the application:
1. “I AM ACTIVELY SEEKING PERMANENT ASSIGNMENT INTO THE NAVAL RESERVES TO ENLIST AS FULL TIME SUPPORT (FTS). IN ORDER TO ACCOMPLISH THIS, I NEED TO HAVE MY PRESENT DISCHARGE UPGRADED FROM GENERAL/UNDER HONORABLE CONDITIONS TO HONORABLE. AS FOR PERSONAL REASONS, I KNOW MY IMMATURITY WAS THE REASON FOR MY DISCHARGE CHARACTERIZATION, BUT I WOULD LIKE MY OFFICIAL MILITARY RECORDS TO SHOW THAT MY STRONG SENSE OF PRIDE AND PATRIOTISM TO THIS COUNTRY WAS OF GREATER INFLUENCE AND THAT A MAN CHANGES IF HE BELIEVES IN SOMETHING. I AM CURRENTLY RESIDING IN AND EMPLOYED AS A LICENSED PARAMEDIC IN THE CITY OF MONTGOMERY, ALABAMA. EVEN THOUGH MY PRESENT JOB IS REWARDING IN THAT I HELP PEOPLE ON A DAILY BASIS, I, HOWEVER, WOULD FEEL MORE SATISFACTION IN KNOWING THAT I COULD BE HELPING AMERICANS ON A GREATER SCALE, MAINLY OUR MEN AND WOMEN FIGHTING ABROAD TO DETER THE THREAT OF TERRORISM TO THIS COUNTRY. HAVING HAD FIRST HAD KNOWLEDGE ON THE HARDSHIPS THEY ARE FACING, I KNOW MY CONTRIBUTIONS CAN BE OF GREAT IMPORTANCE. BY HAVING MY DISCHARGE UPGRADED AND JOINING THE U. S. NAVAL RESERVES, I’LL DO MY PART TO ENSURE OUR SAILORS AND SOLDIERS ARE TAKEN CARE OF TO THE BEST OF MY ABILITY. P lease take careful consideration in reviewing my request for a discharge upgrade as it is not only to improve my self worth, but for the care of the people of this great nation. ”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member-4), USN
Applicant’s DD Form 214 (Member-4), ARNG
Orders 046-027, dtd February 15, 2003
Orders 066-255, dtd March 7, 2003
Orders 010-208, dtd January 10, 2003
Orders 181-2205, dtd June 29, 2003
Orders 051-279, dtd February 20, 2003
Army Commendation Medal, May 29, 2003 to May 28, 2004
Certificate of Completion, Combat Lifesaver Course
Completion Certificate of International Criminal Investigative Training Program
Certificate of Achievement, Operation Iraqi Freedom

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMR (J) (DEP)         920103 - 920510  ELS
          Inactive: USNR (DEP)     920422 - 920422  COG
         
Period of Service Under Review :
Date of Enlistment: 920423               Date of Discharge: 931105

 Length of Service (years, months, days):
         Active: 01 06 13
          Inactive: None
Age at Entry: 19                          Years Contracted: 4

Education Level: 12+                       AFQT: 36
Highest Rate: FN

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 2.20 (2)    Behavior: 2.20 (2)                OTA: 2.20

 Military Decorations: None
Unit/Campaign/Service Awards: NDSM (Desert Shield/Storm)
Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):
UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

920806:  NJP for violation of UCMJ, Article 91(2 Specifications): Disrespectful in language and Willfully disobey a lawful order.
 Violation of UCMJ, Article 121: Larceny.
         Award: Forfeiture of $440.00 per month for 1 month, restriction and extra duty for 15 days, reduction to E-2. No indication of appeal in the record.
930206:  NJP for violation of UCMJ, Article 121: Larceny of $300.00 on 921221.
         Award: Forfeiture of $200.00 per month for 1 month, reduction to E-1 (suspended for 6 months). No indication of appeal in the record.
930206:  Retention Warning from USS ABRAHAM LINCOLN (CVN 72) Advised of deficiency (Violation of the UCMJ, Art 121: Larceny of $300.00 from the ATM account of ABE3 G_ K_ O_, on 921221), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

930929:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 134: Between 14 – 18 August, with the intent to defraud, did wrongfully obtain long distance services from AT&T, of value of about $388.12.
          Sentence: Forfeiture of $388.00 per month for 1 month, reduced to E-2, 15 days of restriction and 10 days confinement.
          CA action 931001: Sentence approved and ordered executed.
931002:  Commanding Officer, USS ABRAHAM LINCOLN, notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of serious offenses as evidenced by Commanding Officer’s NJP of 930206 and Summary Court-Martial of 930929 and misconduct due to a pattern of misconduct as evidenced by Commanding Officer’s NJP of 930806 and 930206 and by Summary Court-Martial of 930929.

931002   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. Applicant objected to separation.
931004:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to the commission of serious offenses. Commanding Officer’s comments (verbatim): FA W_ (Applicant), is a below average performer who requires constant supervision. He has no respect for authority and is unwilling to conform to the Navy’s rules and regulations. His unwillingness to conform has made him a burden to this command and the Navy. Therefore, I most strongly recommend that he be discharged from the Naval Service with an Other Than Honorable discharge due to misconduct due to the commission of serious offenses and misconduct due to a pattern of misconduct.
931012:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19931105 under other than honorable conditions for misconduct due to a pattern of misconduct (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 Applicants desire to enlist as a full time support (FTS) Naval Reservist, 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. T his issue does not provide a foundation upon which the Board can grant relief.

Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the Applicant’s enlistment. While he may feel his immaturity was a contributing factor to his misconduct, it does not mitigate the Applicant’s disobedience of the orders and directives regulating good order and discipline in the naval service. The Applicant’s service record is marred by the awarding of nonjudicial punishment (NJP) on two separate occasions for insubordinate conduct and larceny and a conviction at Summary Court-Martial for wrongfully obtaining long distance telephones services with the intent to defraud thus substantiating his misconduct, and demonstrating he was unsuitable for further service . It must be noted most Sailors serve honorably; thereby, earning honorable discharges. In fairness to those Sailors, commanders and separation authorities are tasked to ensure the undeserving receive no greater a service characterization than is due. An upgrade to honorable conditions would be inappropriate. Relief denied.

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. However, 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 violations of the Uniform Code of Military Justice while on active duty; however, the Board was favorably impressed by the Applicant’s efforts to continue serving our country by enlisting in the Alabama National Guard and encourages him to continue his participation. Relief is not warranted.

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, Change 5, effective 05 Mar 93 until 21 Jul 94), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – A PATTERN OF MISCONDUCT.

B. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 91, Insubordinate conduct ; Article 121, Larceny ; Article 134, Wrongfully obtained long distance services with the intent to defraud ; 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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