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NAVY | DRB | 2005_Navy | ND0500158
Original file (ND0500158.rtf) Auto-classification: Denied


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

ex-AR, USN
Docket No. ND05-00158

Applicant’s Request
The application for discharge review was received on 20041101. The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to HONORABLE. The Applicant requests a documentary record discharge review. The Applicant did not list any the representative on the DD Form 293.

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:

 1. “BECAUSE OF AN UNJUSTIFIABLE DISCHARGE.”
2. “ Most Esteemed Navy Council of Personnel Board,

Subject:         Reconsideration for an Unjust Discharge

I, G_ F_ ( Applicant ), am reverently requesting reconsideration to change an unjust “OTH” discharge to an “Honorable” discharge and my re-entry code from RE-4 to RE-1.

My discharge was improper because I was dismissed under false allegations that I did not have a chance to prove. It was invented by several civilians, and reported to the chain of command that I was committing ‘adultery’ and that I ‘disobeyed a direct order’. I was put on restriction, received a cut in rank and was treated badly.

My wife’s ex-husband incessantly called my commander and the Chaplin demanding I had stolen her away from him. This was the beginning of the problems and the cause of my dismissal while I was stationed at Mayport, Jacksonville. Florida.

There was also an incident with Master Chief M_ made me a sexual offer in front of witnesses, SN W_, SN P_ and SN P_. All of us went to Lt. P_ to let him know what happened and that I felt uncomfortable. SN P_ told me and Lt. P_ that MC M_ confided in her (SN P_) that he was indeed ‘bisexual”.

After that, MC M_ was transferred to another division and legal office was charging me with new allegations of different and random causes. I knew then I was on the list to be kicked out. I should have never told about the incident, but it was too late.

From October 2003 to my last day December 19, 2003, Legal office had been coercing me to sign Discharge papers. Chief C_, in the Legal office, told me that I would go to the Brig if I did not sign the papers. So I signed the papers, but only to be put in the Brig anyway for three (3) days. When I was released from the Brig on the 19th of December, 2003, they gave me “MISCONDUCT’ with a Reentry Code of 4. Only really bad people get that sort of discharge.

I have over two years of college completed and I would like to finish school. However, since my discharge I cannot find worthwhile employment. My wife and I have a new baby born 23 July 2004. We, dreadfully, are on food stamps and have no place to live.

Fortunately, my mother-in-law is letting us stay with her and because of my discharge we cannot receive unemployment to get on our feet.

I humbly beg and supplicate with all my being to please change my discharge. My family and I can’t live in poverty and in unsubstantiated, invalid disgrace of an “other than honorable” discharge. I never ever did drugs or anything to be unworthy. I was just a victim of a jealous ex-husband and his friends trying to get me away from my wife and for telling about that incident. I truly feel I don’t deserve an “OTH”, Misconduct and RE-4.

I pray that you will use your discernable judgment in this situation and help me for this my LIFE.

With utmost respect,

 G_ F_ F_ ( Applicant )”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     020425 - 020711  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 020712               Date of Discharge: 031219

 Length of Service (years, months, days):

         Active: 01 05 08
         Inactive: None

 Age at Entry: 25                          Years Contracted: 4 (12 month extension)

 Education Level: 12                        AFQT: 43

 Highest Rate: AA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 1.00 (1)             Behavior: 1.00 (1)                OTA: 1.00

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 29

 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 :

030606:  Retention Warning: Advised of deficiency (NJP for violations of Articles 86 and 90), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
030606:  NJP for violation of UCMJ, Article 86: UA from 030603 until 030604. Article 90: Specification 1: Willfully disobey a lawful order from a superior commissioned officer on 030524. Specification 2: Willfully disobey a lawful order from a superior commissioned officer on 030526. Specification 3: Willfully disobey a lawful order from a superior commissioned officer on 030528.
         Award: Forfeiture of $575 per month for 2 month(s), restriction and extra duty for 45 days, reduction to E-1. Reduction, forf and 15 das of restriction and extra duties susp for 6 mos. No indication of appeal in the record.
031121:  Punishment of restriction and extra duty for 15 days, forf of $575 per month for 2 months RIR to E-1 susp on 030606 vacated due to continued misconduct.

031121:  NJP for violation of UCMJ, Article 86: UA from O/A 031020 until 031027, UA from O/A 031106 until 031116. Article 87: Missed movement on 031111.
         Award: Forfeiture of $600 per month for 2 month(s), restriction and extra duty for 45 days. No indication of appeal in the record.
031121:  Applicant notified of intended recommendation for discharge by reason of misconduct due to the commission of a serious offense with the least favorable discharge characterization of under other than honorable conditions.
031121:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

031121:  Applicant refused to sign administrative separation processing notice [Extracted from CO’s letter of 031208].

031201:  Applicant to UA. [Extracted from DD214.]
031208:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and by reason of misconduct due to a pattern of misconduct.

031209:  Applicant from UA. [Extracted from DD214.]

031210:  CO, CG6 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 20031219 under other than honorable conditions for misconduct due to commission of a serious offense (A & 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. 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. An Under Other Than Honorable Conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. The Applicant’s service was marred by two nonjudicial punishment proceedings for violations of Articles 86, 87 and 90 of the UCMJ. In addition, the Applicant went on unauthorized absence after refusing to sign his separation notification, an event that was never adjudicated. 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 and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

Issue 2. The Applicant contends that he “was dismissed under false allegations that I did not have the chance to prove.” The statement provided by the Applicant does not refute the presumption of regularity in this case. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his action. The Applicant was provided the opportunity to present his case before an administrative board, but waived that right, thus accepting the discharge recommended in the letter of notification. In reviewing the Applicant’s statements and service record, the Board found no evidence of impropriety or inequity in the Applicant’s discharge. Relief denied.

A "serious offense" is defined by the MILPERSMAN as an offense under the UCMJ for which the Manual for Court-martial authorizes a punitive discharge. A wide range of UCMJ offenses meet this criteria, including disrespectful language, failure to obey a lawful order or written regulation, such as not maintaining hair within standards, drunken driving, forgery, missing ship's movement, unauthorized absence for 30 days or more, making false official statements, and so forth, right up to the most "serious" crimes of spying, aiding the enemy in time of war, mutiny, rape and murder. A person in the military must abide by the standards as set forth in military regulations and laws, regardless of what guidelines his civilian counterparts might utilize. While the board regrets that the applicant must live with the stigma associated with the term "serious offense," it cannot justify changing the reason for discharge unless it is inappropriate in describing the circumstances surrounding the applicant's discharge.


The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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 Veterans Administration determines eligibility for post-service benefits not the Navy 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.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, 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.

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 90, failure to obey a lawful order or Article 87, missing movement, 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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