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NAVY | DRB | 2005_Navy | ND0500829
Original file (ND0500829.rtf) Auto-classification: Denied


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

ex-SKSN, USN
Docket No. ND05-00829

Applicant’s Request
The application for discharge review was received on 20050419. The Applicant requests his characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review. The Applicant did not list any representative on the DD Form 293. Subsequent to the application, the Applicant obtained representation by the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050819. 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 3630600.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“ My discharge was inequitable because it was based on an incident(s) that occurred only 12 months after reenlisting. I was having a problem involving gambling. My not requesting help with this from my command was an error on my part I still regret. I was not aware of any counseling or treatment that was offered at that time. I was never informed by the attorneys at NETC Newport that by accepting NJP, I would be possibly discharged. I also was not counseled that I could be reduced in rank two paygrades. I was reduced from E-5 to E-3.”

Representative submitted no issues.

Applicant’s remarks:
“ I hope this board will consider changing my discharge and reenlistment codes to honorable. I received help with my gambling nine years ago. I have led an honorable life since that time, I’ve been employed at the same job for 10 years, have been married, purchased a home, and am raising a child. The reason for requesting this review after all this time is to reenlist either the Naval Reserve or Ohio National Guard. I wish to offer my assistance in that way to America’s war on global terrorism. This is not an attempt, on my part, of trying to obtain educational or any other benefits”.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Employee Performance Reviews (9 pages)
Certificate of Completion (Technical Information and Motor Home Educational (T.I.M.E.) Program) dtd February 25, 2004
Certificate of Completion (2003 Monaco Coach Warranty and Parts Seminar) dtd June 19, 2003

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR            861014 - 870621 
         Active: USNR              870622 - 930414  HON

 Period of Service Under Review :
Date of Enlistment: 930415               Date of Discharge: 940830

 Length of Service (years, months, days):

         Active: 01 04 16                  (07 01 09 total service)
         Inactive: None

 Age at Entry: 24                          Years Contracted: 3

 Education Level: 12                        AFQT: 78

 Highest Rate: SK2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.80 (2)             Behavior: 2.70 (2)                OTA: 3.47 (3)

 Military Decorations: None

 Unit/Campaign/Service Awards: Good Conduct, Meritorious Unit Commendation; Sea Service Ribbon, M16 Rifle (Expert), P222 SIG Sauer (Expert), .45 CAL (MM)

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

930415:  Reenlisted for 3 years, SK2.
940503:  Retention Warning: Advised of deficiency. A pattern of minor unauthorized absence infractions and failure to satisfy personal financial obligations expeditiously, notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
940720:  NJP for violation of UCMJ, Article 134: (7 specifications), make and utter worthless checks, dishonorably failing to maintain funds, violation of UCMJ Article 134: drive after denial, suspension or revocation of license, violation of UCMJ Article 121: 12 April – 27 May, fail to pay debt.
         Award: Forfeiture of $700.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-4. No indication of appeal in the record.
940722:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by your Commanding Officer’s nonjudicial punishment of 20 July 1994 for violation of the UCMJ Article 121: Wrongful appropriation, Article 123a: (4 Specifications), Making, drawing, or uttering check without sufficient funds, Article 134: (2 Specifications), Making and uttering worthless check by dishonorably failing to maintain funds, Article 134, Dishonorably failing to pay debt, and Article 134: Assimilative crimes act.
940728:  Applicant advised of rights and having elected 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.
940802:  Commander, Naval Education and Training Center, Newport recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

940823:  BUPERS 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 19940830 under other than honorable conditions for misconduct due to commission of a serious offense (A and D). 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 (B and C).

Issue 1: Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. After a thorough review of Applicant’s case the Board discovered no impropriety or inequity. 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 that service as honorable. A 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. Despite the servicemember’s record of service, certain serious offenses warrant separation from the naval service in order to maintain proper order and discipline. The Applicant’s service was marred by nonjudicial punishment (NJP) for violations of UCMJ Article 134 (make and utter worthless checks, failing to maintain funds and driving after denial, suspension or revocation of license) and Article 121 (dishonorably fail to pay debt), both of which are considered serious offences, th us substantiating the misconduct for which he was separated. The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls short of that required for an upgrade in the characterization of service. Relief is not warranted.

The Applicant contends that his problems in the Navy can be attributed to his gambling problem. While he may feel that his gambling was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

The Applicant contends that his discharge was inequitable as he considers the discharge as resulting from his NJP. The Applicant’s issue is without merit. Administrative discharge processing is a separate and distinct process from punitive proceedings such as NJP and court-martial. Furthermore, administrative discharge processing is administrative in nature and not considered a form of punishment. For the edification of the Applicant, the specifications on the discharge notification and recommendation for discharge are not exactly the same as those, which were adjudicated at NJP. Based upon the evidence of record, the NDRB found no improprieties or inequities in the Applicant’s discharge processing. Relief denied.

The Applicant objects to being reduced in rank to E-3 from E-5. Following administrative separation processing those members who receive an other than honorable characterization of service and are in pay grades E-4 and above must be administratively reduced to no higher than E-3. The Applicant was first reduced from E-5 to E-4 as a result of NJP. Then, in order to comply with administrative processing, further reduced to E-3. The Commanding Officer, Enlisted Personnel Education and Training Center properly notified the Applicant of this reduction in pay grade on 21 July 1994. Following this notification the Applicant acknowledged the reduction in pay grade in his response to the Commanding Officer, wherein he stated that he did not object to the separation. The Applicant was provided the opportunity to present his case to an administrative board, but waived that right, thus accepting the discharge recommended in the letter of notification. Relief denied.

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.

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 stated he is married, has a child and no longer gambles, he submitted certificates for technical training and employee performance reviews. After careful consideration, the Board concluded the Applicant’s post-service achievements though commendable are insufficient to mitigate his misconduct while in the Naval service. 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), Change 9, effective
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

 B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .
D. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 134 for making and uttering worthless checks-by dishonorably failing to maintain funds, if adjudged at a Special or General Court-Martial.

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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