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NAVY | DRB | 2005_Navy | ND0501167
Original file (ND0501167.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-RMSN, USN
Docket No. ND05-01167

Applicant’s Request
The application for discharge review was received on 20050706. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable or general (under honorable conditions). The Applicant requests a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060131. 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 commission of a serious offense.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated
Applicant’s issues, as stated on the application:

“I was stationed at The Naval Air Station in Fallon Nevada. I was discharged from the United States Navy in June of 1993. At the time, I was in the process of getting a divorce. Bacically I returned home one day and everything was moved out of the house. Every bill or personal checks that were written to our bank account fell on my hands. After going through a Chiefs Review, it was determined that I would be separated under other than honorable conditions.

It’s over ten years later, Over the past 11 years I worked with the Rite of Passage Program in Yerington Nevada. We work to rehabilitate youths. I am a Reserve Police Officer and wish to make law enforcement a career. I am remarried and have worked hard over the past years to clear up the financial burdens from my first marriage.

I respectfully request that this department upgrades my discharge.

Thank you,

K_ M_ L_ (Applicant)”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Service 2) (2 copies)
Form from Department of Veterans Affairs
Letter from Applicant, dated October 16, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19850731 – 19851209               COG
         Active: USN                        19851210 – 19891005               HON
        
Period of Service Under Review :
Date of Enlistment: 19891006             Date of Discharge: 19930702

 Length of Service (years, months, days):

         Active: 03 08 27
         Inactive: None

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

 Age at Entry: 22

 Years Contracted: 5

 Education Level: 12                                 AFQT: 26

 Highest Rate: RM2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.8 (5)              Behavior: 3.6 (5)                          OTA: 3 .6

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal, Sea Service Deployment Ribbon, Meritorious Unit Commendation, Navy “E” Ribbon, First Good Conduct Award for Period Ending 92 Aug 19, Navy & Marine Corps Overseas Service Ribbon.


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

UNDER OTHER THAN HONORABLE CONDITIONS/ MISCONDUCT , authority: MILPERSMAN, Article 3630600.
Chronological Listing of Significant Service Events :

891006:  Reenlisted this date for a term of 5 years.
920325:  NJP for violation of UCMJ, Article 86:
         Award: Forfeiture of $ 50.00 pay per month for 2 months, reduction to E-3. No indication of appeal in the record. [Extracted from OIC’s letter.]

920805:  Commanding Officer, NEXCEN, San Diego, CA: Applicant’s check returned in the amount of $360.00 for insufficient funds. Aforementioned balance still outstanding.

920812:  Collection Clerk, NEX NAS Sigonella, IT: Applicant’s reminder that payment is past due. Payment was received on 920623 bringing the balance to $4,852.10.

920814:  Navy Federal Credit Union: Applicant’s Sharechek account was closed this date due to the unsatisfactory manner in which it was maintained.

920821:  Commanding Officer, NEXCEN, San Diego, CA: Applicant’s check returned in the amount of $50.00.

920929:  Collection Clerk, NEX NAS Sigonella, IT: Applicant’s final reminder that payment is past due. Payment was received on 920826 bringing the balance to $4,782.01.

921027:  Retention Warning: Advised of deficiency (Violation of UCMJ Article 123a; uttering a check without sufficient funds, Disregard for UCJM Article 134; failure to pay just debts.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
921203:  DONCAF: Applicant notified of intent to revoke eligibility for a clearance.
930305:  Pay Adjustment Authorization: NEX NAS Sigonella requested the Applicant’s pay account be charged for checks returned. Applicant signed a pay agreement on 920402, last payment was received on 921023. Please forward payment as soon as possible.
930311:  DONCAF: Applicant’s security clearance revoked effective this date.

 930409:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct; specifically, failure to pay just debts and commission of a serious offense (uttering checks without sufficient funds).

930419:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.
930510:  Officer in Charge, Naval Telecommunications Center Fallon, recommended to Chief of Naval personnel, via Commanding Officer, Naval Communication Station Stockton that the Applicant be discharged with a general (under honorable conditions) by reason of misconduct (Failure to pay just debts and commission of the serious offense of uttering checks without sufficient funds). Officer in Charge’s comments: “Petty Officer L_ (Applicant), has proven to be a mediocre performer. With supervision he produced acceptable results in the work center, however he failed to become qualified as a watch section supervisors (enclosure (4)). He was counseled (enclosure (5)) concerning failure to pay just debts and uttering checks without sufficient funds. On 27 Oct 92 he was issued a page 13 counseling/warning entry (enclosure (6)) concerning the aforementioned and advised that any failure to adhere to regulations could result in administrative separation. During his security clearance bring up investigation, the full extent of his financial indebtedness and misconduct was discovered (enclosure(7)). This resulted in the loss of his security clearance and removal from NTCC Fallon work spaces (enclosure (8) and (9)). Pending a rating conversion, he was assigned temporary duty at NAS Fallon Morale, Welfare and Recreation Department. He subsequently failed to pay just debt (enclosure (10)). Additionally, he was counseled for failure to muster (enclosure (11)). Results of a Professional Development Board (enclosure (12)). Convened at NAS Fallon indicated Petty Officer L_ (Applicant) has become an administrative burden. Pursuant to reference (a), I certify RM2 L_ (Applicant) is unsuitable for retention due to his misconduct and recommend a General Discharge.”

930517:  Commanding Officer, Naval Communication Station Stockton, concurred with Officer in Charge, Naval Telecommunications Center Fallon recommendation of separation by reason of misconduct (Failure to pay just debts and commission of the serious offense of uttering checks without sufficient funds) with a general (under honorable conditions) discharge.

930617:  BUPERS, directed the Applicant's discharge with 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 19930702 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).

 Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question. No such impropriety or inequity is evident during the Applicant’s enlistment. 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’s service was marred by repeated financial difficulties, including returned checks and failure to pay outstanding debts in violation of UCMJ Articles 123a and 134. The Applicant was also awarded nonjudicial punishment proceedings for a violation of UCMJ Article 86, unauthorized absence. Under applicable regulations, a violation of UCMJ Article 123a or 134, debt, dishonorably failing to pay, 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. 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 his disciplinary problems were the result of stress caused by difficulties in his marriage. The NDRB recognizes that serving in the U.S. Navy is challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. It must be noted that many members of the Navy endure hardships similar to those of the Applicant. It must further be noted that the vast majority of those members do not commit misconduct as a result of their problems. Despite their hardships, these sailors are still able to serve honorably and therefore earn their honorable discharges. In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. The NDRB found that the Applicant's service was equitably characterized. 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 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. As of this time, the Applicant has not provided any post-service documentation for the Board to consider. 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 additional evidence related to this 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 5, effective
05 Mar 93 until 21 Jul 94, 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 123a, making, drawing, or uttering check, draft or order without sufficient funds or Article 134, debt, dishonorably failing to pay.

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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