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NAVY | DRB | 2005_Navy | ND0500834
Original file (ND0500834.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-ATAA, USN
Docket No. ND05-00834

Applicant’s Request
The application for discharge review was received on 20050419. The Applicant requests the Discharge 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 on any representative on DD Form 293 but subsequently designated Veterans of Foreign Wars as his reprehensive.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20051006. 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) by reason of misconduct due to a pattern of misconduct .

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“The purpose of wanting my discharged changed along with my RE code is because I was punished for a personnel issue that was happening in my life at the time. I put a man in prison for sexual conduct with a minor. (victim is myself) He was released from prison in 2001. I never received help for this problem or tried to until it was to late. When I transferred to NAS Jacksonville I got to the point to where I was scared because I didn’t know where this person was or if he was after me. I didn’t know what to do and I was embarrassed to talk to anyone about it. Because of the problems in my life, it caused my military life to be interfered with. I could not sleep, eat, or wake up for work when I did get sleep. I spent night after night crying and talking to my father at all hours of the night. In Jan. 04 I went to CO’s mast and was demoted to E-3 and sent to CCU for 30 days. I called my father and talked to him about it and he got the chaplain involved in it. My CO decided CCU was not where I should be so I was released. In March I went back to mast for being late for duty section muster on a weekend, that was when I was discharged. I asked for help twice and was turned down by my CO both times. My CO and Legal Officer both said I would keep all benefits and MGIB. Come to find out they lied to me about that as well.”

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

 “Propriety or Equity Issue(s): Commander never certified Administrative Separation Processing Notice as required by regulation.
Statement: In accordance with 32 CFR § 724, and SECNAVINST 5420.174D, the Veterans of Foreign Wars submits to the Naval Discharge Review Board (NDRB) the above issue and following statement in supplement to the Applicant’s petition

Mr. P_ (Applicant) served honorably in the US Navy from Jun. 30, 1999 to Apr. 29, 2003. He was discharged on Apr. 29 and re-enlisted on Apr. 30, 2003. The period of service before Apr. 30, 2003 should be characterized as fully Honorable.

Mr. P_ (Applicant) is a recipient of the National Defense Service Medal, the Sea Service Deployment Ribbon (2 nd Award), the Battle ‘E’ Ribbon, and the Armed Forces Expeditionary Medal.

Mr. P_ (Applicant) was awarded and voluntarily accepted a General discharge Under Honorable Conditions. He states that the command indicated that he would receive full benefits from the VA. That statement is incorrect: some benefits, including participation in the Montgomery GI Bill require a fully Honorable discharge.

Mr. P_ (Applicant) was physically, emotionally, and sexually abused as a minor. He has presented evidence of that fact in his packet to the Discharge Review Board.

In the interest of fairness and equity, the VFW requests that Mr. P_ (Applicant) be awarded a revised DD 214 which reflects the fully Honorable nature of his service before Apr. 30, 2003. Additionally we ask that the propriety of the discharge be examined, paying special attention to the commander’s failure to certify the administrative separation processing notice. If the failure to certify the notice is a violation of Mr. P_ (Applicant)’s due process rights, then the proper recourse would be to characterize that service as fully Honorable also.

The Veterans of Foreign Wars’ express purpose in providing this statement and any other submittals or evidence filed is to assist this 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.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Letter from J_ P_, undated
Letter of Verification (Victim Assistance Program) from Sumter Police Department dtd February 16, 2005
Incident Report, dtd May 25, 1993
Sumter Police Department Report, undated
Certified credit for time spend in Jail dtd June 24, 1996
State of South Carolina Arrest Warrant dtd August 25, 1993
Letter from J_ A. T_ dtd July 5, 1996 (3 pgs)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19981114 – 19990625               COG
          Active: USN                        19990625 – 20030429               HON
Period of Service Under Review :
Date of Enlistment: 20030430             Date of Discharge: 20040401

 Length of Service (years, months, days):

         Active: 00 11 01
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: none
         Confinement:              none

 Age at Entry: 22

Years Contracted: 6

 Education Level: 12                                 AFQT: 33

 Highest Rate: AT3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.0 (1)              Behavior: 1.0 (2)                 OTA : 1 .75

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal, Sea Service Deployment Ribbons (2), Battle “E” Ribbon, Armed Forces Expeditionary Medal


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

GENERAL (UNDER HONORABLE CONDITIONS)/ PATTERN OF MISCONDUCT, authority: MILPERSMAN, Article 1910-140 (formerly 3630600).
Chronological Listing of Significant Service Events :

030430:  Reenlisted this date for a term of 6 years.
040116:  Retention Warning: Advised of deficiency (Violation of UCMJ, Article: 86 (2 Specs), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 040116:  NJP for violation of UCMJ, Article 86: (2 Specifications), Absence without leave.
         Award: CCU for 30 days, reduction to E-3. No indication of appeal in the record.

040315:  NJP for violation of UCMJ, Article 86 (3 specs): Absence without leave.
         Specification 1: In that ATAN P_, S_ C., U.S. Navy, Center for Naval Aviation Technical Training Unit Jacksonville, Florida, on active duty, did, on or about 0800, 06 March 2004, without authority, absent himself from appointed place, to wit: Duty Section Muster and did remain so absent until on or about 0822, 06 March 2004.
         Specification 2: In that ATAN P_, S_ C., U.S. Navy, Center for Naval Aviation Technical Training Unit Jacksonville, Florida, on active duty, did, on or about 0600, 08 March 2004, without authority, absent himself from appointed place, to wit: Student NMT and remain so absent until on or about 0830, 08 March 2004.
 Specification 3: In that ATAN P_, S_ C., U.S. Navy, Center for Naval Aviation Technical Training Unit Jacksonville, Florida, on active duty, did, on or about 0600, 10 March 2004, without authority, absent himself from appointed place, to wit: Student NMT and remain so absent until on or about 0850, 10 March 2004.
          Award: Forfeiture of $665 per month for 2 months, reduction to E-2. No indication of appeal in the record.
040316:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct - pattern of misconduct.
040316:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
040318:  Commanding Officer, Center for Naval Aviation Technical Training Jacksonville, FL, recommended the Applicant’s general (under honorable conditions) discharge by reason of pattern of misconduct. Commanding Officer’s comments: “ATAA S_ C. P_’s (Applicant) patter of misconduct is a direct violation of U.S. Navy Policies and standards and are a direct detriment to good order and discipline. Airman Apprentice P_’s (Applicant) conduct falls within the parameters of reference (a), and discharge is warranted. I recommend Discharge of Airman Apprentice P_ (Applicant) from the Naval Service with a General Discharge (Under Honorable Conditions).”

040414:  Commanding Officer, Center for Naval Aviation Technical Training Jacksonville, FL, informed CNPC (PERS-832) that the Applicant was separated under honorable conditions (general) 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 20040401 by reason of misconduct due to a pattern of misconduct (A) with a service characterization of general (under 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 (B and C). The Board presumed regularity in the conduct of governmental affairs (D).

 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 or general 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 a retention warning and two nonjudicial punishment proceedings for violations of Article 86 of the UCMJ. 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.

The Applicant contends that his problems in the Navy can be attributed to a “personal issue.” While he may feel that the stress he experienced as a result of a personal problem 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 he “asked for help” and was “turned down” by his Commanding Officer. There is no evidence in the record nor did the Applicant provide any evidence that he was treated unfairly or improperly by his command. As such, the Board found the Applicant’s subsequent Administrative discharge proper and equitable. Relief on this basis is denied.

The Applicant contends that he was “lied to” regarding eligibility for Veterans’ benefits. There is no evidence in the record nor did the Applicant provide any evidence to show that he was assured any Veterans’ benefits. However, even if the Applicant could show misrepresentations regarding benefit eligibility, such misrepresentations would neither amount to a justification nor to a defense for the Applicant’s own misconduct. Additionally, for the edification of the Applicant, the Veterans Administration determines eligibility for post-service benefits not the Naval 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. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. Relief is not warranted.
The Applicant contends through counsel that an error in the Applicant’s administrative separation processing notice dated 20040315 warrants a change of the Applicant’s characterization of service. The Board found that the lack of the Commanding Officer’s signature on the Applicant’s notice did not violate that Applicant’s due process rights. The Applicant acknowledged receipt of the notice and certified his response to the notice as complete on 20040316. 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, 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. 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 2002 until 25 April 2005, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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. 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.

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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