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NAVY | DRB | 2005_Navy | ND0501009
Original file (ND0501009.rtf) Auto-classification: Denied


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

ex-BMSA, USN
Docket No. ND05-01009

Applicant’s Request
The application for discharge review was received on 20050531. 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 designated civilian counsel as the representative on the DD Form 293 and subsequently designated Veterans of Foreign Wars as his representative.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20051013. 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 witness that had a charge against me was not present at the court marshal and was already discharged.

*I had four years of good service achieving the rank of BM3 and being a Master Helmsman

*I completed my four years of service”

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

 “Propriety or Equity Issue(s): The Administrative Discharge packet includes an error in the materials used by board members who deliberated on the Applicant’s board.

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. C_ (Applicant) served in the US Navy from Nov. 24, 1997 to Nov. 27, 2001. He is a recipient of the Armed Forces Expeditionary Medal, the Humanitarian Service Medal, the Sea Service Deployment Ribbon and the Battle ‘E’ Ribbon.

Mr. C_ (Applicant) has non-judicial punishments on record for one specification of violation of Article 86 (Unauthorized Absence), one specification of violation of Article 87 (Missing Movement), 2 specifications of violations of Article 92 (Failure to Obey a lawful Order and being Incapacitated while on duty by means of drunkenness) and one specification of violation of Article 134 (Underage Drinking).

Mr. C_ (Applicant) has a Summary Court Martial for one specification of violation of Article 86 (UA), 2 specifications of violation of Article 128 (Assault), and one specification of violation of Article 134 (Communicating a Threat).

Mr. C_ (Applicant) was awarded a General discharge (Under Honorable Conditions) by an administrative separation board. In the packet of instructions given to the Board, there is a chart of potential discharges and their effect on the service-member’s benefits after service. The document in question is located on pages 69 and 70 of the Board packet located in Mr. C_ (Applicant)’s record. There is an error in the packet which may have violated Mr. C_ (Applicant)’s rights to due process under the UCMJ.

Page 69 of the separation packet in question indicates that service members separated with a General (Under Honorable Conditions) discharge are entitled to education benefits from the VA. This is not true. VA procedures manual M22-4 § 1.17(e)(2) [included as an annex] notes that any discharge characterization of “less than honorable” characterization is a bar to payment of Chapter 30 Montgomery GI Bill benefits.

Had the Board known that Mr. C_ (Applicant) would be ineligible to receive MGIB benefits they might have awarded him an Honorable discharge. The faulty information they were given and considered in the process of deciding his discharge characterization was as prejudicial to Mr. C_ (Applicant)’s case as a set of bad jury instructions would be to a criminal case. Without a true and accurate representation of the applicable laws, statutes and regulations, the decision of the board can not be properly formulated.

Because Mr. C_ (Applicant)’s due process rights were unduly abridged during his administrative separation board, his discharge should be re-characterized as fully ‘Honorable.’ This is the only equitable outcome.

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:
Attachment to Veterans of Foreign Wars issue, M22-4, Part V, Change 22, dtd April 8, 2003
Applicant’s DD Form 214
Kilgore College Unofficial Transcript for Applicant, printed May 17, 2005
Kilgore College schedule for Applicant, printed May 17, 2005
Job/Character Reference from L_ R. B_, Human Resources, Corrections Corporation of America, dtd May 18, 2005
Pre-employment criminal history inquiry results, dtd May 9, 2005
Character Reference from J_C_, dtd April 4, 2005 (2 pages)
Character Reference from W. B_ D_, Campus Minister, Kilgore College, dtd October 15, 2004

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19971031 - 19971123      COG
          Active: None

 Period of Service Under Review :
Date of Enlistment: 19971124             Date of Discharge: 20011127

 Length of Service (years, months, days):

         Active: 03 11 07
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 2 days
         Confinement:              25 days

 Age at Entry: 17 (Parental Consent)

 Years Contracted: 4 (24 month extension)

 Education Level: 11                                 AFQT: 53

 Highest Rate: BM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.3 (3)                       Behavior: 2.3 (3)                 OTA: 3.11

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


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 :

990112:  Applicant to unauthorized absence at 0530 on 990112.

990112:  Applicant missed ship’s movment.

 990114:  Applicant from unauthorized absence at 1300 on 990114 (2 days/surrendered).
990326:  NJP for violation of UCMJ, Article 86.
         Specification: Unauthorized absence (2 days).
 Violation of UCMJ, Article 87:
Specification: Missing movement.
          Award: Forfeiture of $480 per month for 2 months, restriction and extra duty for 30 days, reduction to E-1, oral/admonition. Extra duty, 1 month forfeiture and reduction suspended for 6 months. No indication of appeal in the record.

990326:  Retention Warning: Advised of deficiency (Captain Mast: 26 MAR 99 Charge: Article 86 - Unauthorized absence (2 days). Article 87 - Missing movement), notified of corrective actions and assistance available, advised of consequences of further deficiencies and issued discharge warning.

000913:  Applicant completed Alcohol IMPACT course.

 010201:  NJP for violation of UCMJ, Article 92:
         Specification: Failure to obey a order.
 Violation of UCMJ, Article 134 (2 specs):
Specification 1: Incapacitation for duty.
Specification 2: Underage drinking.
          Award: Forfeiture of $653 per month for 1 month, restriction for 60 days, reduction to E-3. No indication of appeal in the record.
010201:  Retention Warning: Advised of deficiency (Captains Mast: 1 Feb 01. Charge I: Article 92 - Failure to obey a order. Charge II: Article 134 - Incapacitation for duty. Charge III: Article 134: Underage drinking), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 010426:  Retention Warning: Advised of deficiency (Substandard performance through prior indulgence of alcohol resulting in drunkenness, disorderly conduct and under age drinking), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

010802:  Applicant completed the rehabilitation treatment program for alcohol dependence. Applicant provided an aftercare plan and informed any further substance related incidents will make the Applicant eligible for administrative separation.

010904:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 128 (2 specs): Assault.
         Specification 1: In that BMSN J_ Z. C_ (Applicant), USN, USS BONHOMME RICHARD (LHD 6), on active duty, did on board, USS BONHOMME RICHARD (LHD 6), at sea, on or about 6 August 2001, unlawfully strike HM3 C_ while walking though the port side passageway.
         Specification 2: In that BMSN J_ Z.C_, USN, USS BONHOMME RICHARD (LHD 6), on active duty, did, on board, USS BONHOMME RICHARD (LHD 6), at sea, on or about 6 August 2001, unlawfully strike SA R_ W. M_, Jr. to wit: by grabbing SA M_ and slamming him against the bulkhead and grabbed for his testicles and saying “if you come near me again, I will cut your nuts off” or words to that effect.
          Charge II: violation of the UCMJ, Article 86 (2 specs): Unauthorized absence.
          Specification 1: In that BMSN J_ Z. C_ (Applicant), USN, USS BONHOMME RICHARD (LHD 6), on active duty, did on board, USS BONHOMME RICHARD (LHD 6), at sea, on or about 0730, 8 August 2001, without authority, fail to go at the time prescribed t his appointed place of duty, to wit: Deck Department Morning Quarters.
         Specification 2: In that BMSN J_ Z. C_ (Applicant), USN, USS BONHOMME RICHARD (LHD 6), on active duty, did on board, USS BONHOMME RICHARD (LHD 6), at sea, on or about 0845, 8 August 2001, without authority, absent himself from his place of duty at which he was required to be, to wit: Deck Department Spaces located on board USS BONHOMME RICHARD (LHD 6), and did remain so absent until he on or about 1100, 8 August 2001.
 Charge III: violation of the UCMJ, Article 134: Communicating a threat.
          Specification: In that BMSN J_ Z. C_ (Applicant), USN, USS BONHOMME RICHARD (LHD 6), on active duty, did on board, USS BONHOMME RICHARD (LHD 6), at sea, on or about 8 August 2001, wrongfully communicate to BM2 M_ a threat to “kick his a__” or words to that effect.
          Finding: to Charge I and the specifications thereunder, guilty. Charge II and specification 1 thereunder, guilty. Charge III and the specification thereunder guilty. Charge II and specification 2 thereunder, not guilty.
          Sentence: Forfeiture of $584.00, confinement for 30 days, reduced to E-2.
         CA action: Not found in service record.
011001:  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, misconduct - commission of serious offense, alcohol abuse rehabilitation failure.
011001:  Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.
011031:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to pattern of misconduct, misconduct due to commission of serious offense and alcohol abuse rehabilitation failure, that such misconduct warranted separation and recommended a general (under honorable conditions) discharge.
011115:  Applicant’s request for leave until exhausted and then leave without pay and allowance approved.

011210:  Commanding Officer, USS BONHOMME RICHARD (LHD 6), recommended discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct, misconduct due to commission of a serious offense and alcohol abuse rehabilitation failure. Commanding Officer’s comments: “I have carefully reviewed the evidence contained in enclosure [(1) Copy of Administrative Board]. It is very clear that SA C_ (Applicant) is unsuitable for further military service due to his pattern of misconduct, commission of serious offense and alcohol rehabilitation failure. SA C_ (Applicant) has exhibited total disregard for the Navy’s rules and regulations. As a result, member is unable to function in the trusted capacity as a sailor due to pattern of misconduct, commission of serious offense and alcohol abuse rehabilitation failure. As his behavior is a hindrance to good order and discipline, I strongly recommend that SA C_ (Applicant) be immediately separated from the naval service with an Other Than Honorable Discharge.”

020125:  COMPHIBGRU THREE , directed the Applicant's discharge with a general (under honorable conditions) character of service by reason of pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20011127 by reason of misconduct due to a pattern of misconduct (A and B) 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 (C and D).

A 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 record reveals two retention warnings, two nonjudicial punishment proceedings and a summary court-martial for violations of Articles 86, 87, 92, 128 and 134 of the UCMJ. The Applicant’s violations of Articles 87, 92 and 128 are considered serious offenses. In addition, the Applicant’s violation of Article 134 for communicating a threat is considered a serious offense. 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. The Board found the Applicant’s discharge proper and equitable. Relief is not warranted.

The Applicant implies that his discharge was improper because, “The witness that had a charge against me was not present at the court marshal [sic] and was already discharged.” There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was improperly or inequitably convicted of an offense which he did not commit. The Summary Court-Martial Officer determined beyond a reasonable doubt that the Applicant committed the offenses for which he was found guilty of at trial. Relief on this basis is denied.

The Applicant contends that the had “four years of good service” and claims that he completed his four years of service. Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. The Applicant’s Commanding Officer recommended the Applicant’s discharge by the reason of misconduct due to the commission of a serious offense, misconduct due to a pattern of misconduct and alcohol rehabilitation failure and indicated that the Applicant could not “function in the trusted capacity as a sailor.” Further, the Applicant did not complete his service obligation. The Applicant enlisted 19971124 for four years with a 24-month extension. The Applicant completed only 3 years, 11 months and 7 days of this six year obligation due to the Applicant’s lost time due to confinement and unauthorized absence. Relief on this basis is not warranted.

The Applicant contends through his representative that the Applicant’s discharge was improper because the board that recommended a general (under honorable conditions) characterization of service was given “faulty information” that indicated the Applicant would be entitled to educational benefits with a general (under honorable conditions) characterization. The record of proceedings for the Applicant’s administrative separation board indicates that the members of the board had access to MILPERSMAN 1910-300 and MILPERSMAN 1910-302 (exhibits 21 and 22). MILPERSMAN 1910-302 indicates that characterization should be based on, “the quality of the member’s service, including the reason for separation… quality of service shall be determined according to standards of acceptable personal conduct and performance of duty.” MILPERSMAN 1910-302 does not indicate that a member’s post-service eligibility for benefits should be considered. The NDRB determined that there is no indication that the Applicant’s administrative separation board recommended the Applicant’s general characterization with a false understanding of benefits which the Applicant would be eligible to receive. The NDRB found that the Applicant’s administrative processing, to include the Applicant’s administrative separation board, to be proper and equitable. Relief denied.

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 his discharge was appropriate and that his evidence of post-service conduct was found not to mitigate the conduct for which he was discharged. 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. 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 18, effective
12 Dec 1997 until 21 Aug 2002, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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 87, missing movement, Article 92, failure to obey an order/regulation, Article 128, Assault and Article 134, communicating a threat.

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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