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NAVY | DRB | 2005_Navy | ND0501073

Original file (ND0501073.rtf) Auto-classification: Denied

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

FOR OFFICIAL USE ONLY

ex-MSSA, USN
Docket No. ND05-01073

Applicant’s Request

The application for discharge review was received on 20050614. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). The Applicant requests a personal appearance hearing before the Board in the Washington National Capital Region. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing. The Applicant designated a private representative as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051206. 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 and reason for discharge shall not change. The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to a pattern of misconduct .

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

“I was accused of something I didn’t do. I didn’t fight the charges because I was scared and the JAG officer on the boat told me that I would go to jail if I didn’t plea. I was bullied into pleading guilty.

I am not saying that I didn’t do anything wrong during my Enlistment, but I am saying in this situation, I did not.
I would greatly love to reenlist in the Navy.”

Representative submitted no issues.

Applicant’s Remarks: (Taken from the DD Form 293.)

“I respectfully ask anyone reading this to put themselves into my shoes. I was a twenty year old kid up aginst a team of trained lawyers. My lawyer didn’t listen to me when I told her that I was not guilty. She told me to take the plea too. I felt as if there was nothing I could do. I did not do these things they said I did. I am older now, and I want to be a police officer. No one will give me a chance because of this. This has been a big dent in my life.”

Documentation

Only the service and medical records were reviewed. The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

         Inactive: USNR (DEP)     19990824 - 20000621      COG
         Active: None

Period of Service Under Review :

Date of Enlistment: 20000622             Date of Discharge: 20021015

Length of Service (years, months, days):

         Active: 02 03 24 (Does not exclude lost time.)
         Inactive: None

Time Lost During This Period (days):

         Unauthorized absence:    51 days
         Confinement:                       25 days

Age at Entry: 18

Years Contracted: 4

Education Level: 12                                 AFQT: 33

Highest Rate: MSSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: NA*                                    Behavior: NA*             OTA: NA*

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

* Not Available

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

UNDER OTHER THAN HONORABLE CONDITIONS/ PATTERN OF MISCONDUCT, authority: MILPERSMAN, Article 1910-140 (formerly 3630600). Discharged in absentia.

Chronological Listing of Significant Service Events :

020116: Applicant to unauthorized absence 0800-1100, 020116.

020117: Applicant to unauthorized absence 0600-0630, 020117.

020130: Applicant to unauthorized absence on 020130.

020219: Applicant from unauthorized absence on 020219 (20 days).

020301: Applicant to unauthorized absence on 020301.

020304: Applicant from unauthorized absence on 020304 (3 days).

020308: NJP for violation of UCMJ, Article 86 (5 specs): Unauthorized absence.
         Specification 1: Unauthorized absence from 0800-1100 on 020116.
         Specification 2: Unauthorized absence from 0600-0630 on 020117.
         Specification 3: Unauthorized absence, place of duty, on 020127.
         Specification 4: Unauthorized absence from 020130-020219.
         Specification 5: Unauthorized absence from 020301-020304.
Violation of UCMJ, Article 92: Failure to obey a general order.
Specification: Fail to obey a lawful general order by wrongfully possessing two (2) armed forces identification cards.          Award: Forfeiture of $649 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. Reduction and $649.00 suspended for 6 months. Defrocked and will not be allowed to advance. No indication of appeal in the record.

020311: Retention Warning: Advised of deficiency (VUCMJ, Article 86 (5 specs) - unauthorized absence from unit on 0800-1100, 16 January 2002; 0600-0630, 17 January; 30 January - 19 February; 1 March - 4 March; and failure to go to mandatory physical training on 27 January; and VUCMJ, Article 92 - failure to obey a general order by possessing two military identification cards on 19 February 2002, that led to nonjudicial punishment of 8 March 2002), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

020423: Applicant to unauthorized absence on 020423.

020425: Applicant from unauthorized absence on 020425 (2 days).

020426: Applicant to unauthorized absence on 020426.

020508: Applicant from unauthorized absence on 020508 (12 days).

020723: Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 86 (13 specs): Specification 1: In that Mess Management Specialist Seaman C_ L. G_ (Applicant), U.S. Navy. USS ENTERPRISE, on active duty, did, on or about 23 April 2002, without authority, absent himself from his unit, to wit: USS ENTERPRISE, located at Norfolk Naval Shipyard, Portsmouth, Virginia, and did remain so absent until on or about 25 April 2002.
         Specification 2: In that Mess Management Specialist Seaman C_ L. G_ (Applicant), U.S. Navy. USS ENTERPRISE, on active duty, did, on or about 26 April 2002, without authority, absent himself from his unit, to wit: USS ENTERPRISE, located at Norfolk Naval Shipyard, Portsmouth, Virginia, and did remain so absent until on or about 8 May 2002.
         Specification 3: In that Mess Management Specialist Seaman C_ L. G_ (Applicant), U.S. Navy. USS ENTERPRISE, on active duty, did on board USS ENTERPRISE, on or about 0705, 10 May 2002, 9 May 2002, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: pretrial restriction muster.
         Specification 4: In that Mess Management Specialist Seaman C_ L. G_ (Applicant), U.S. Navy. USS ENTERPRISE, on active duty, did on board USS ENTERPRISE, on or about 0630, 11May 2002, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: pre-trial restricted muster.
         Specification 5: In that Mess Management Specialist Seaman C_ L. G_ (Applicant), U.S. Navy. USS ENTERPRISE, on active duty, did on board USS ENTERPRISE, on or about 1130, 11May 2002, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: pre-trial restricted muster.
         Specification 6: In that Mess Management Specialist Seaman C_ L. G_ (Applicant), U.S. Navy. USS ENTERPRISE, on active duty, did on board USS ENTERPRISE, on or about 0700, 12 May 2002, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: pretrial restriction muster.
         Specification 7: In that Mess Management Specialist Seaman C_ L. G_ (Applicant), U.S. Navy. USS ENTERPRISE, on active duty, did on board USS ENTERPRISE, on or about 0700, 19 May 2002, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: pretrial restriction muster.
         Specification 8: In that Mess Management Specialist Seaman C_ L. G_ (Applicant), U.S. Navy. USS ENTERPRISE, on active duty, did on board USS ENTERPRISE, on or about 0630, 21 May 2002, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: pretrial restriction muster.
         Specification 9: In that Mess Management Specialist Seaman C_ L. G_ (Applicant), U.S. Navy. USS ENTERPRISE, on active duty, did on board USS ENTERPRISE, on or about 0705, 23 May 2002, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: pretrial restriction muster.
         Specification 10: In that Mess Management Specialist Seaman C_ L. G_ (Applicant), U.S. Navy. USS ENTERPRISE, on active duty, did on board USS ENTERPRISE, on or about 0630, 25 May 2002, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: pretrial restriction muster.
         Specification 11: In that Mess Management Specialist Seaman C_ L. G_ (Applicant), U.S. Navy. USS ENTERPRISE, on active duty, did on board USS ENTERPRISE, on or about 1145, 25 May 2002, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: pretrial restriction muster.
         Specification 12: In that Mess Management Specialist Seaman C_ L. G_ (Applicant), U.S. Navy. USS ENTERPRISE, on active duty, did on board USS ENTERPRISE, on or about 1145, 26 May 2002, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: pretrial restriction muster.
         Specification 13: In that Mess Management Specialist Seaman C_ L. G_ (Applicant), U.S. Navy. USS ENTERPRISE, on active duty, did on board USS ENTERPRISE, on or about 0700, 27 May 2002, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: pretrial restriction muster.
Violation of the UCMJ, Article 89:
Specification: In that Mess Management Specialist Seaman C_ L. G_ (Applicant), U.S. Navy. USS ENTERPRISE, on active duty, did on board USS ENTERPRISE, on or about 9 May 2002, behave himself with disrespect toward Lieutenant (junior grade) F_ D. B_, U.S. Navy, his superior commissioned officer, than known by the said Mess Management Specialist Seaman G_ (Applicant) to be his superior commissioned officer, by saying to him “You don’t scare me. F_ this shit,” or words to that effect.
Violation of the UCMJ, Article 92:
         Specification: In that Mess Management Specialist Seaman C_ L. G_ (Applicant), U.S. Navy. USS ENTERPRISE, on active duty, having knowledge of a lawful order issued by Lieutenant (junior grade) F_ D. B_, U.S. Navy, to return to his office, an order which it was his duty to obey, did on board USS ENTERPRISE, on or about 9 May 2002, fail to obey the same by wrongfully not returning to Lieutenant (junior grade) B_’s office.
         Violation of the UCMJ, Article 121:
         Specification 1: In that Mess Management Specialist Seaman C_ L. G_ (Applicant), U.S. Navy. USS ENTERPRISE, on active duty, did, at or near Norfolk Naval Shipyard, Portsmouth, Virginia, on or about 26 April 2002, wrongfully appropriate a motor vehicle, of a some value, the property of Mess Management Specialist Seaman Recruit P_ K. N_, U.S. Navy.
         Specification 2: In that Mess Management Specialist Seaman C_ L. G_ (Applicant), U.S. Navy. USS ENTERPRISE, on active duty, did, at or near Hampton Roads, Virginia, on or about 26 April 2002 steal a Play Station 2 and some digital video discs (DVDs), of some value of, the property of Mess Management Specialist Seaman Recruit P_ K. N_, U.S. Navy.

020723: Preferred charges of 020723, referred to summary court-martial this date.

020725: Pretrial agreement. Applicant agrees to plead guilty to all charges preferred against him in exchange for the convening authority disposing of all charges against the Applicant at summary court-martial.

020725: Summary Court-Martial.
         Findings: To Charge I and all of the specifications thereunder, guilty, to Charge II and the sole specification thereunder, guilty, to Charge III and the sole specification thereunder, guilty, and to Charge IV and the specifications thereunder, guilty.
         Sentence: Forfeiture of $902.00 pay per month for one month, confinement for 30 days, reduced to E-2.
         CA action 020909: Sentence approved and ordered executed.

020830: Summary of Applicant’s sworn testimony.

020919: Applicant to unauthorized absence at 020919.

021002: Applicant from unauthorized absence at 021002 (12 days).

021002: Applicant notified of intended recommendation for discharge by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense. Applicant notified that the least favorable characterization of service possible is under other than honorable conditions.

021002: Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

021008: Commanding Officer, USS ENTERPRISE (CVN 65) recommended discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct and commission of a serious offense. Commanding Officer’s comments: “MSSA G_ (Applicant) has engaged in a series of serious offenses over the past 8 months, including 11 missed pre-trial restriction musters, and unauthorized absences. Pursuant to the pre-trial agreement, on 2 October 2002, he elected to waive his right to an administrative discharge board. MSSA G_ (Applicant)’s misconduct coupled with his missed musters, extended periods of unauthorized absences, blatant disrespect for officers and wrongful appropriation clearly, he shows he has no potential for officers and wrongful appropriation clearly, he shows he has no potential for naval service. Accordingly, I recommend that MSSA G_ (Applicant) be discharged with a characterization of Other Than Honorable.”

021015: COMCRUDESGRU TWELVE directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

030224: CNPC instructed USS ENTERPRISE to refer to BUPERINST 1900.8 for procedures to issue DD215 to reflect correct SPN code (Block 26) HKA and narrative reason for separation (Block 28) PATTERN OF MISCONDUCT.

Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged, in absentia, on 20021015 by reason of misconduct due to a pattern of misconduct (A) 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 (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 discharge is warranted when a member's conduct involves one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service. T he Applicant was awarded nonjudicial punishment (NJP) on 20020308 for five violations of UCMJ Article 86, unauthorized absences totaling 23 days, and two violations of UCMJ Article 92 failure to obey order or regulation by wrongfully possessing military ID cards. Subsequent to this NJP, the Applicant was administratively warned by issuance of a NAVPERS 1070/613 Counseling/Retention warning that further misconduct could result in administrative separation. On 20020725, the Applicant, in accordance with his pleas, was convicted at summary court-martial of 13 violations of UCMJ Article 86, two unauthorized absences totaling 14 days and 11 missed pretrial restriction musters, one violation of UCMJ Article 89, disrespect to a superior commissioned officer, one violation of UCMJ Article 92, failure to obey order or regulation, and two violations of UCMJ Article 121, one specification of wrongfully appropriating an automobile and one specification of stealing a playstation and DVDs. Under applicable regulations, the Applicant’s misconduct did in fact constitute a pattern of misconduct. 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. Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service. Relief is not warranted.

The Applicant contends that his guilty pleas were the result of “bullying” by his JAG attorney and a professional team of Navy lawyers. There is a presumption of regularity in the conduct of governmental affairs. This presumption permits the Board to presume that the government’s agents acted in good faith, proceeded within the bounds of the law, and conformed their behavior to appropriate standards during the Applicant’s Naval service and subsequent administrative processing. The Applicant bears the burden of establishing his issues through the presentation of substantial and credible evidence. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was the victim of inappropriate conduct on the part of his detailed JAG counsel or any other attorney practicing under the cognizance of the Judge Advocate General of the Navy. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. Relief denied.

There is no requirement or law that grants recharacterization solely on the issue of enhancing employment opportunities 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.

The NDRB did note a technical error on the Applicant’s DD Form 214. The record indicates that separation occurred on 20020930. However, there is credible evidence in the record that the Applicant was still on active duty until at least 20021015 by virtue of his notification and waiver of rights on 20051002 and the separation authority’s letter directing discharge of 20021015. As such, the NDRB presumed the Applicant was discharged no earlier than 20021015, the date the authority to separate was issued. The NDRB is convinced that this procedural error was not prejudicial to the Applicant and therefore affords him no relief. There is little doubt to the NDRB that the discharge would have remained the same if the error had not been made and thus relief based upon this error is not warranted.

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 Present, 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, Para 211, Regularity of Government Affairs .

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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NAVY | DRB | 2005_Navy | ND0501073

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