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NAVY | DRB | 2005_Navy | ND0500774.HR
Original file (ND0500774.HR.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-SR, USNR
Docket No. ND05-00774

Applicant’s Request
The application for discharge review was received on 20050330. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance discharge review before a traveling panel. The Applicant designated a member of the U.S. Congress as his representative on the DD Form 293. In a 20050620 acknowledgement letter from the NDRB, the applicant was informed that members of Congress or their employees do not normally represent Applicants before the Board. The applicant was provided three recommendations for obtaining representation/counsel at the Applicant’s expense. Additionally, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in Washington DC. Subsequent to the application, the Applicant obtained representation from the Veterans of Foreign Wars.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 20060320. Af ter 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 by reason of misconduct due to commission of a serious offense.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION
Issues, as stated

 Applicant’s issues, as stated on the application:

“I FEEL MY DISCHARGE SHOULD BE CHANGED DUE TO COUNCIL MISREPRESENTATION AND MY PRIOR SERVICE RECORD AND THE FACT THAT I HAVE NOT BEEN IN TROUBLE SINCE THE INCIDENT. THE DISCHARGE IS ALSO AFFECTING MY ABILITY TO WORK AS A AIRCRAFT MECHANIC AND USE MY DEGREES I AQUIRED AFTER MY DISCHARGE FROM THE MILITARY. AT NO COST TO THE MILITARY FOR MY BACKGROUND CHECKS OR AWARD ME AN SEPERATION THAT WILL ALLOW ME TO HAVE NO TIES WITH THE MILITARY NO BENIFITS JUST A CLEAN START. I’M NOT ASKING FOR MONEY OR BACK PAY OR BENIFITS JUST A CHANCE TO BE A PRODUCTIVE PERSON IN SOCIETY AND EARN MY KEEP. I HAVE WORKED VERY HARD TO BECOME A GOOD MECHANIC AND GRADUATED AT THE TOP OF MY CLASS AND CANNOT USE MY LICENSE I AQUIRED THRU THE FAA THAT I WORKED HARD FOR. SO PLEASE GIE ME A CHANCE TO ACCOMPLISH MY DREAM IF I COULDNOT DUE IT IN THE NAVY. ALLOW ME THE CHANCE AT MY OWN COST IN THE CIVILLIAN WORLD. THANK YOU IN ADVANCE
D_ C. R_ III”

Issues submitted by Applicant’s representative (Veterans of Foreign Wars):

“ In accordance with 32 CFR 724, AND SECNAVINST 5420.174D, the Veterans of Foreign Wars submits to the Naval Discharge and Review Board (NDRB) the above issue and following statement in supplement to the applicant’s petition.

The applicant is asking that the Board upgrade his discharge to honorable. He has completed his education, and has been a valuable contributor to society since his military service. Since 9-11, working in his field has been difficult due to new requirement mandated by law. The applicant humbly requests the board to show mercy as he sincerely has changed since his military service and now contributes positively to society.

The Veterans of Foreign Wars’ express purpose in providing this statement and any other submittals or evidence filed is to assist the applicant in the clarification and resolution of the impropriety or inequity raised. To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 USC 1553, and set forth in 32 CFR 724 and SECNAVINST 5420.174D.

This case is now respectfully submitted for deliberation and disposition.”


 Additional issues submitted by Applicant’s counsel/representative (Veterans of Foreign Wars,):

“XXXXXXXXXXXXXXXXXXXXX.”

 Issues submitted by Applicant’s counsel/representative ( Veterans of Foreign Wars):
“XXXXXXXXXXXXXXXXXXXXXX.”
Documentation
In addition to the In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
service and medical records, the Applicant provided the following additional documentation for the Board’s consideration:

Character ltr. from T_ G. C_, dtd March 17, 2006
Character ltr. from C_ B. W_, dtd March 16, 2006
Character ltr. from D_ D_, Attorney at Law, dtd March 16, 2006
Applicant Transcripts from School of Aeronautics

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USA (DEP)      19900524 - 199901004     (Discharged from DEP due to
police involvement)
         USN (DEP) 19901113-19901209
          Active: None    

Period of Service Under Review :
Date of Enlistment: 19901210             Date of Discharge: 19920623

 Length of Service (years, months, days):

         Active: 01 06 13 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 29 days
         Confinement:              10 days

 Age at Entry: 19

 Years Contracted: 2

 Education Level: 12                                 AFQT: 67

 Highest Rate: SR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance 2.8 (1)                        Behavior: 2.8 (1)                 OTA: 3.00
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Medal







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

UNDER OTHER THAN HONORABLE CONDITIONS/ Misconduct - commission of a serious offense , authority: MILPERSMAN, Article 3630600.
Chronological Listing of Significant Service Events :

901113   Enlistment approved for DEP discharge

 901113:  Pre-service waiver for enlistment, one non minor misdemeanor (alcohol related) and three minor misdemeanors (one alcohol related) granted.

901210:  Applicant ordered to active duty.

911218   Applicant charged for violation of article 121 (Larceny)
920113:  Applicant to unauthorized absence at 0700 on 920113.

 920123:  Applicant missed ship’s movement.

 920211:  Applicant from unauthorized absence at 2215 on 920211 (29 days/surrendered). EAOS changed to 950108.
920303:  Charges preferred for violation of the UCMJ, Article 121: Specification: In that SR D_ C. R_ (Applicant), U.S. Navy, on active duty, did, onboard USS WILLIAM H. STANDLEY (CG 32), located at Pier 4 NAVSTA, San Diego, CA on or about 0700, 18 December 1991, wrongfully withold numerous pieces of jewelry, of a value of about $1500.00, the property of SN R_. Violation of the UCMJ, Article 86: Specification: In that SR D_ C. R_ (Applicant), U.S. Navy, on active duty, did on or about 0700, 13 January 1992, without authority absent himself from his unit at which he was required to be to wit: USS WILLIAM H. STANDLEY (CG 32), located at Pier 4 NAVSTA, San Diego, CA, and remain so absent until on or about 2215, 11 February 1992, for a period of about 29 days, 15 hours and 15 minutes and violation of the UCMJ, Article 87: Specification: In that SR D_ C. R_ (Applicant), U.S. Navy, on active duty, did, onboard USS WILLIAM H. STANDLEY (CG 32), located at Pier 4 NAVSTA, San Diego, CA on or about 0800, 23 January 1992, through neglect miss the movement of the USS WILLIAM H. STANDLEY (CG 32), with which he was required in the course of duty to move.





9200402:         Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 121:
         Specification: In that SR D_ C. R_ (Applicant), U.S. Navy, on active duty, did, onboard USS WILLIAM H. STANDLEY (CG 32), located at Pier 4 NAVSTA, San Diego, CA on or about 0700, 18 December 1991, wrongfully withold numerous pieces of jewelry, of a value of about $1500.00, the property of SN R_. Plea : Guilty. Finding : Guilty
         Charge II: violation of the UCMJ, Article 86:
         Specification: In that SR D_ C. R_ (Applicant), U.S. Navy, on active duty, did on or about 0700, 13 January 1992, without authority absent himself from his unit at which he was required to be to wit: USS WILLIAM H. STANDLEY (CG 32), located at Pier 4 NAVSTA, San Diego, CA, and remain so absent until on or about 2215, 11 February 1992, for a period of about 29 days, 15 hours and 15 minutes. Plea : Not Guilty. Finding : Guilty.
         Charge III: violation of the UCMJ, Article 87:
 Specification: In that SR D_ C. R_ (Applicant), U.S. Navy, on active duty, did, onboard USS WILLIAM H. STANDLEY (CG 32), located at Pier 4 NAVSTA, San Diego, CA on or about 0800, 23 January 1992, through neglect miss the movement of the USS WILLIAM H. STANDLEY (CG 32), with which he was required in the course of duty to move. Plea : Not Guilty. Finding : Guilty.
          Sentence: Forfeiture of $522.00, confinement for 15 days, restriction for 30 days.
         CA action 920402: Sentence approved and ordered executed.
        
920402:  Applicant found fit for confinement.
920404:  Applicant to confinement.

920413:  Applicant from confinement.

 920416:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by your service record.

920420:  Applicant advised of rights and having consulted with counsel, elected to waive all rights.






920522:  Commanding Officer, USS WILLIAM H STANDLEY (CG 32) recommended to the Bureau of Naval Personnel that the Applicant be discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense. Commanding Officer’s comments: “SR R_ (Applicant) has been an administrative burden to the command. His conduct is unacceptable and his attitude is poor. He has no potential for future service. Recommend separation with a characterization of service as Other Than Honorable and a reenlistment code of RE-4.”

920617:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19920623 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of under other than honorable conditions. 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).

The Applicant states that he was not provided proper counsel. The Applicant contends that the ship’s legal officer, was assigned to represent him, initially heard the details of his story, and then was reassigned to represent the command. The Applicant states he was then assigned a chaplain as his counsel. For the edification of the Applicant, a service member assigned duties as legal officer is there to represent the command. The legal officer may speak to and question all of the parties to ascertain the facts on behalf of the command. Sailors may seek assistance/ legal representation from JAG attorneys at the Naval Legal Services Office. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was assigned improper counsel, was improperly counseled, or denied access to counsel. Relief denied.

 The record shows and the Applicant testified that he was provided legal counsel prior to his Summary Court- Martial . The board found that that on 920416 the Applicant was notified of his intended recommendation for discharge with the least favorable characterization of service being under other than honorable conditions by reason of misconduct due to commission of a serious offense. Four days later, on 920420 the Applicant was advised of his rights and having consulted with counsel, elected to waive all rights. The board found no impropriety. Relief denied.
The Applicant states his discharge should be considered for upgrade based on two issues of equity. First, the Applicant contends he was a good sailor. The NDRB advises the applicant that w hen 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. One Summary Court-Martial for violations of UCMJ Articles 121, 86, and 87 marred the Applicant’s service. 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.




 Secondly, the Applicant contends his post service conduct and accomplishments merit an upgrade. 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 the service. The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and while the Applicants post service efforts are commendable, his evidence of post-service conduct was found not to mitigate the misconduct, which precipitated the discharge. Relief denied.

The following is 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), effective 15 Aug 91 until
04 Mar 93, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.
 B. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 121 (Larceny), Article 86 (Unauthorized Absence), and Article 87 (Missing movement).
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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