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NAVY | DRB | 2005_Navy | ND0500089
Original file (ND0500089.rtf) Auto-classification: Denied


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

ex-YNSA, USN
Docket No. ND05-00089

Applicant’s Request
The application for discharge review was received on 20041013. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. 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 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: 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. “I feel my reason for discharge/separation was inequitable because it was based on one isolated incident in 31 months”

I apologize for my mistake and I am very sorry, it was immature of me. I wanted to make the military a career for myself. I wanted to support my country and still do from a position that many people would not and could only imagine. I can only apologize once again for my mistake and I hope my service record, this ltr and DD293 form will be sufficient enough for the upgrade.

My overall request for this upgrade is so I can join the Army.

My goal is to start and finish the 2004-2005 fall semester of college and join the Army in January 2005. I will continue to pursue my college goals even if the discharge is not upgraded. Please make special consideration in this case.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copies of Applicant’s DD Form 214 (2)
Butte Community College District Registration Statement

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     001011 - 001127  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 001128               Date of Discharge: 040127

 Length of Service (years, months, days):

         Active: 03 02 00
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

Education Level: 12                        AFQT: 35

 Highest Rate: YNSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.75 (4)             Behavior: 3.75 (4)                OTA: 3.46

 Military Decorations: None

 Unit/Campaign/Service Awards: NMCOSR(2), M-14 Rifle Expert Medal, 9MM Pistol Sharpshooter Ribbon, NDSM, Flag Letters of Commendation (3), AFEM, MUC, SSDR

 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 :

010412:  NJP for violation of UCMJ, Article 92: Failure to obey written regulation.
         Award: Forfeiture of $100.00 pay per month for 2 months, restriction and extra duty for 30 days. No indication of appeal in the record.
031206:  NJP for violation of UCMJ, Article 81: Conspiracy, did on or about 031126, conspire with ITSA C_ M_, USN, COMCARGRU FIVE, to commit an offense under the UCMJ, to wit: forgery and false or unauthorized pass offense, and in order to effect the conspiracy the Applicant printed three blue liberty cards and forged the signatures of the Commanding Officer and Executive Officer of USS KITTY HAWK (CV 63), and provided ITSA C_ M_, with these unauthorized blue liberty cards so that he could provide them to ITSN I_ N. N_, for his unauthorized use and possession; violation of UCMJ Article 134: (4 Specifications ), Specification 1 : Did on or about 031126, wrongfully and falsely forge a certain instrument purporting to be a blue liberty card in words and figures as follows: by printing the signature of the Commanding Officer, USS KITTY HAWK (CV 63), on a blue liberty card for the wrongful and unauthorized use to ITSN I_N. N_; Specification 2 : Did on or about 031126, wrongfully and falsely forge a certain instrument purporting to be a blue liberty card in words and figures as follows: by printing the signature of the Commanding Officer, USS KITTY HAWK (CV 63), on a blue liberty card for the wrongful and unauthorized use to ITSN I_ N. N_; Specification 3 : Did on or about 031126, wrongfully and falsely forge a certain instrument purporting to be a blue liberty card in words and figures as follows: by printing the signature of the Executive Officer, USS KITTY HAWK (CV 63), on a blue liberty card for the wrongful and unauthorized use to ITSN I_ N. N_; Specification 4 : Did on or about 031127, wrongfully give to ITSA C_ M_, certain document purporting to be three blue liberty cards in words and figures as follows: containing the identifying information of ITSN I_ N. N_, the Applicant, then well knowing the same to be false and unauthorized.
         Award: Forfeiture of $675.00 pay per month for 2 months, restriction for 60 days, reduction to E-2. No indication of appeal in the record.
031206:  Applicant notified of intended recommendation for discharge with a least favorable characterization of general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.
031206:          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.
040116:  Commander, Carrier Group FIVE authorized the Applicant's discharge with a general (under 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 20040127 with a general (under 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: Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question. No such impropriety or inequity is evident during the Applicant’s enlistment. The Applicant contends his discharge was inequitable because it was based on one isolated incident in 31 months of service. 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 for behavior not sufficiently meritorious to warrant an honorable discharge. T he Applicant’s service was marred by nonjudicial punishment proceedings for violations of UCMJ Article 81, conspiracy to commit a forgery and false or unauthorized pass offense, Article 92, failure to obey a written order, and four violations of Article 134, false or unauthorized pass offenses. Specifically, the Applicant helped forge unauthorized liberty passes for his fellow shipmates while aboard the USS Kitty Hawk (CV 63). 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. Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service. Relief is not warranted.

 Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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 sufficient 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. The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge 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 134, false or unauthorized pass offenses, 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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