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NAVY | DRB | 2005_Navy | ND0501240
Original file (ND0501240.rtf) Auto-classification: Denied



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


 FOR OFFICIAL USE ONLY

ex-PNSN, USN
Docket No. ND05-01240

Applicant’s Request
The application for discharge review was received on 20060719. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area. The Applicant designated civilian counsel as the representative on the DD Form 293.

 Decision

A personal appearance discharge review was conducted in Washington, D.C. Metropolitan area on 20060510. 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 4 to 1 that the character of the discharge shall not change. The discharge shall remain General (Under 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 and/or attached document/letter:

 “ R_ B_(Applicant), SSN (deleted), enlisted in the United States Navy on July 6, 1999 and served on active duty from July 6, 1999, until January 5, 2001, the date of his discharge. PNSN B_(Applicant) was administratively discharged from the Navy for Misconduct due to Commission of a Serious Offense, and received a discharge characterization of (General Under Honorable Conditions). When warranted, however, the Naval Discharge Review Board (NDRB) may grant relief and upgrade the characterization. PNSN B_(Applicant) respectfully petitions this Board (Tab A) to exercise its power and discretion to upgrade his Navy discharge designation from General Under Honorable Conditions to Honorable and requests a personal appearance, providing additional documentation to the board. PNSN B_(Applicant), in addition, respectfully requests that his RE-Code be changed from RE-4 to RE-1 on the basis of: 1) Total capabilities, including his age, educational level, in which whether he met normal military standards of acceptability for military service and similar indicators of his ability to serve satisfactorily, as well as ability to adjust to military service, 2) Arbitrary and capricious actions, 3) discrimination, 4) and testimonials from family, friends, employers, and his fellow military comrades which demonstrate that the actions which led to his separation were out of character.
Standards for Discharge Review

The NDRB is established by the Secretary of the Navy pursuant to 10 U.S.C. Section 1553 for the review of discharges of former members of the Naval Service. The rules governing the NDRB, including the standards for discharge review, are promulgated in 32 C.F.R. Section 724. In particular, sub-section 724.903(c) provides the grounds for consideration by which the NDRB may determine that relief is warranted, even though the discharge is determined to have been otherwise equitable and proper at the time of issuance. The Board may consider both the member’s “quality of service” and also his “capability to serve.” The capability to serve may be evidenced by several factors, including four that are particularly relevant to this case. First,

•Total capabilities. This includes an evaluation of matters such as age and educational level. Consideration may also be given as to whether the individual met normal military standards of acceptability for military service and similar indicators of an individual’s ability to serve satisfactorily, as well as ability to adjust to military service. 32 CFR Section 724.903(c) (2)(i).

Second,

•Arbitrary or capricious actions. This includes action by individuals in authority that constitute a clear abuse of such authority and that, although not amounting to prejudicial error, may have contributed to the decision to discharge the individual or unduly influence the characterization of service. 32 CFR Section 724.903(c)(2)(iii).

Third,

•Discrimination. This includes unauthorized acts as documented by records or other evidence. 32 CFR Section 724.903(c)(2)(iv).

Fourth,

•Testimonials of employer, friends, and relatives which demonstrate that the actions which led to his separation were out of character.

As will be shown PNSN B_(Applicant) was the recipient under acts of discrimination, which led to arbitrary and capricious actions by seniors in his chain of command. His level of performance was a product by the evidenced discrimination that was dealt to him. PNSN B_(Applicant) was emotionally incapable of dealing with the working atmosphere that he lived with day to day in his performance of duties. Since his discharge from the Navy, PNSN B_(Applicant) has been a model citizen, a highly educated individual, who has proven to society that his contributions are of a high and professional nature.
Timeliness of the Application

10 U.S.C. Section 1553 provides a 15-year limitation period for the filing of applications with this Board. PNSN B_(Applicant) was discharged from the Navy on January 05, 2001. This application therefore is timely filed.
Summary of PNSN B_(Applicant)’s Naval Career

PNSN B_(Applicant) enlisted in the United States Navy on July 6, 1999. On July 7, 1999 PNSN B_(Applicant) reported to Recruit Training Command, Great Lakes, IL for recruit training. PNSN B_(Applicant) successfully graduated from recruit training on September 14, 1999 and was transferred to Personnelman “A” School in Meridian, MS on September 15, 1999. Upon completion of Personnelman “A” School, PNSN B_(Applicant) was transferred to VAQ-142 for duty on December 14, 1999. On January 5, 2001 PNSN B_(Applicant) was discharged from the United States Navy.
Statement of Facts

Upon reporting to Commanding Officer, Electronic Attack Squadron 142, PNSN B_(Applicant) had been repeatedly discriminated and harassed in regards to his race, origin and age. The repeated discrimination and harassment caused a hostile work environment that mentally and physically ruined PNSN B_(Applicant)’s naval career. On June 7, 2000 PNSN B_(Applicant) initiated an Equal Opportunity complaint regarding, cruelty, unfair treatment, racist remarks, mental harassment of himself, spouse and children. This equal opportunity complaint was filed against his supervisor (YNC M_). (Tab B).

On June 19, 2000 PNSN B_(Applicant) sent E-mail to Navy EOA Community Advisor, Navy Personnel Command, Professional Relationships Division (PERS 61), Millington, TN. This request was initiated to change duty stations within the same geographical area due to the harassment and discrimination that he had received in his command. (Tab C).

On June 26, 2000 the Commanding Officer of Electronic Attack Squadron 142 appoints a Preliminary Inquiry Officer (LCDR J_ R. W_) to investigate the formal complaint filed by PNSN B_(Applicant). (Tab D). On June 26, 2000 the Commanding Officer, VAQ-142 sends a Formal Equal Opportunity - Sexual Harassment Complaint message to Commander Naval Air Pacific San Diego, CA. (Tab E). Type of incident was discrimination. On July 17, 2000, Commander, Electronic Attack Wing, U.S. Pacific Fleet appoints LT J_ A. C_ as the Investigating Officer for the formal equal opportunity complaint. (Tab F). On July 24, 2000, LT C_, records on the Navy Equal Opportunity (EO/Sexual Harassment (SH) Formal Complaint Form that the complaint is “substantiated” and states “member to be reassigned to another command”. The recommendation is then approved by Commanding Officer, VAQ-142 for reassignment to another command and signed on September 17, 2000. (Tab G). On July 24, 2000 Commanding Officer VAQ- 142 issues TEMADD Travel Order (ONC 110) and directs PNSN B_(Applicant) to be assigned Temporary Additional Duty to Naval Air Station (Others) located at NAS Whidbey Island for a period of ninety (90) days. (Tab H). On August 16, 2000, Commander Electronic Attack Wing, U. S. Pacific Fleet forwards to Commander, Naval Air Force, U. S. Pacific Fleet (N11B) a letter concurring with the findings of the Investigating Officer (LT Craig). (Tab I). On November 27, 2000, Commanding Officer, VAQ- 142 starts proceedings to administratively separate PNSN B_(Applicant) for Misconduct - Commission of a Serious Offense (x4). (Tab J). On December 22, 2000, Commander, Electronic Attack Wing. U. S. Pacific Fleet, concurs with Commanding Officer, VAQ-142 to separate PNSN B_(Applicant). (Tab K). On 4 January 2001, Commanding Officer, Naval Air Station, Whidbey Island administratively discharges PNSN B_(Applicant). (Tab L).

Since PNSN B_(Applicant)’s discharge from the United States Navy, he has aggressively pursued to change his type of discharge and RE-Code on numerous occasions. On March 25, 2002, PNSN B_(Applicant) requested to the Navy Board of Corrections relief to be reinstated on active duty as of the date of his separation with attendant back pay and allowances and credit for time in grade for pay, promotion and retirement purposes. (Tab M). On December 8, 2002, the Department of the Navy Board for Correction of Naval Records denied relief to PNSN B_(Applicant) request dated March 25, 2002. (Tab N). On February 10, 2003, PNSN B_(Applicant) submitted additional documentation to Navy Board of Corrections requesting reconsideration. On April 23, 2003, the Navy Board of Corrections denied PNSN B_(Applicant) reconsideration and found it not appropriate to grant relief at that time. (Tab O). Additionally, PNSN B_(Applicant) submits additional documentation and requests reconsideration to the Navy Board for Correction of Naval Records on June 23, 2003, May 6, 2004, June 24, 2004 and August 1, 2004. (Tabs P, Q, R and 5). All of which were denied, although the material that was submitted was new, it was not considered material. In addition on June 6, 2004 PNSN B_(Applicant) submits to the Naval Council of Personnel Records, Naval Discharge Review Board an application for discharge review. (Tab T). On February 8, 2005 a Notice of Decision that Discharge is Proper as Issued is signed and released to PNSN B_(Applicant) notifying him upon the decision. (Tab U).
PNSN B_(Applicant)’s Accomplishments and Contributions since Discharge from the Naval Service

 Since PNSN B_(Applicant)’s discharge from the Navy, he has proven himself a valuable asset to the civilian community and has accomplished many goals set out in life. Anyone who has known PNSN B_(Applicant) for any length of time speaks highly of him. PNSN B_(Applicant)’s employer Angel International Inc, D_ W_ writes,

“Mr. R_ B_(Applicant) is very honest, hardworking, result oriented, a team player with supervisory skills, he has successfully been dealing with all the staff and all clients in a very positive manner, generating greater sales for the company and reflecting an assertive image for the company. Over the last years, he has been very punctual always before or on time for scheduled work and meetings; he bears an exemplary moral character. He has focused on delivering great sales material while constantly refining processes and reducing costs. He is very result oriented and proves himself on every ground.” (Tab V).

LtCol, B. S. B_ (RET) writes,

“R_ B_(Applicant) since his childhood has been very hardworking and obedient, always on time, very organized from his room, his books, his homework and every aspect of his daily routine. He has great family values and good principles in life, he does not have any bad habits, he is a team player and very result oriented and focused, and he is also very trustworthy, loyal, and faithful and has a great moral character.” (Tab W).

R_ C_ writes,

“I know Mr. B_(Applicant) for more than five years. He is very professional, caring, very well mannered and always well groomed and well dressed. He has all positive qualities in him, he is very good in communication skills, everyone in touch with him likes him, he is very honest and hardworking and God fearing gentleman. He has an exemplary moral character.” (Tab X).

A_ K_ writes,

“I have known R_ B_(Applicant) for the last four years. He is very courteous, humble, kind and a people person, he is always ready to help people and give them sound advice, he is very reliable, an honest, hardworking and has a very pleasant personality. He has a very high moral character.” (Tab Y).

In addition, PNSN B_(Applicant) earned his Bachelor’s Degree on April 28, 2004 in Business Administration. (Tab Z). On December 20, 2004, PNSN B_(Applicant) earned his Master’s Degree in Business Administration. (Tab AA).

Argument
Though Otherwise Equitable, PNSN B_(Applicant)’s Discharge Should be Upgraded According to the Rules Governing the Board

When evaluating whether to upgrade PNSN B_(Applicant) ‘s discharge, this board must determine if sufficient evidence exists to warrant granting the requested relief, even though the discharge was proper at the time of issuance. The principles of equity that guide this Board’s deliberations clearly justify upgrading the discharge in question. As noted above, 32 C. F. R. Section 724.903c instructs the Board to consider:

1) Total capabilities, including his age, educational level, in which whether he met normal military standards of acceptability for military service and similar indicators of his ability to serve satisfactorily, as well as ability to adjust to military service, 2) Arbitrary and capricious actions, 3) discrimination, 4) and testimonials from family, friends, employers, and his fellow military comrades which demonstrate that the actions which led to his separation were out of character.

All of these factors support the upgrade of PNSN B_(Applicant)’s discharge.

PNSN B_(Applicant) was a good sailor. His desire to serve in the United States Navy is well reflected in every endeavor, as is still evident today. PNSN B_(Applicant) made his decision to enlist at the age of thirty-three. Older than the average age of sailors enlisting in the United States Navy, PNSN B_(Applicant) while stationed at VAQ-142 was discriminated about his age. Specifically, on May 11, 2000 PNSN B_(Applicant) stated, “Chief M_ called me a 36 year old, failure Indian, behaving like a one year old and good for nothing”. (Tab G). These types of actions only promote a hostile work environment in which PNSN B_(Applicant) was constantly subjected to. Discrimination was apparent all over the work place. PNSN B_(Applicant) states that Chief M_ “continuously taunted and said sarcastic remarks about being Indian and not good for the job due to age and nationality”. (Tab G). He further states, “Chief M_ said you are Indian and you don’t know anything and if I complain to child services and family housing, your children will be taken away from you.” (Tab G). All of these complaints were checked “substantiated” on Block 14a of (Tab G) by the investigating officer (LT C_), and further approved by the Commanding Officer, VAQ-142 (CDR R_). The recommendation by the investigating officer (LT C_) was to reassign PNSN B_(Applicant) to another command and approved by the Commanding Officer (CDR R_). The date of approval for transfer was July 24, 2000. PNSN B_(Applicant) stated “that whenever I requested assistance for filing a complaint, I was told that I would face serious consequences”. (Tab B). As a result of PNSN B_(Applicant) failed attempts to resolve the issues with his chain of command, PNSN B_(Applicant) was forced to utilize different avenues that are publicized through the Navy Equal Opportunity Program. Since reporting aboard VAQ-142, PNSN B_(Applicant) was the victim of discrimination and harassment. The Commanding Officer, Electronic Attack Squadron 142 did not carry out his responsibility under the Navy’s Equal Opportunity Program until 26 June 2000, when he officially assigned a preliminary inquiry (Tab D). On June 26, 2000, Commanding Officer, VAQ 142 sends a (Formal Equal Opportunity - Sexual Harassment Complaint) to Commander, Naval Air Pacific, San Diego, CA by message. (Tab E). As reflected in (Tab E), in paragraph 2, miscellaneous remarks: “command received hand-written complaint on June 19, 2000. Upon review by command legal officer and discussions with Echelon IV Command (COMVAQWINGPAC), it was determined that this was in fact an official EO complaint”. The investigating officer (LT C_) substantiated that there was evidence of discrimination and harassment and the Commanding Officer (VAQ-142) acknowledged there was discrimination and harassment in regards to PNSN B_(Applicant)’s official complaint. This was further acknowledged by Commander, Naval Air Force, U. S. Pacific Fleet (N11B) concurring with the findings of the Investigating Officer (LT C_) on August 16, 2000. (Tab I).

In reference to PNSN B_(Applicant)’s Report and Disposition of Offenses(s) (exhibits included in (Tab J)), PNSN B_(Applicant) was charged with Violation of UCMJ Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer) (2 specifications), May 17, 2000. These charges were never disposed of at Non-Judicial Punishment, so therefore the charge was never substantiated. Additionally, PNSN B_(Applicant) was charged with Violation of UCMJ Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer) on June 30, 2000. This charge was never disposed of at Non-Judicial Punishment, so therefore the charge was never substantiated. Additionally, PNSN B_(Applicant) was charged with Violation of UCMJ Article 92 (Failure to obey order or regulation) (2 specifications) and Violation of UCMJ Article 87 (Missing Ships Movement) on September 1, 2000. In response to Violation of UCMJ Article 92 (Failure to obey order or regulation) (2 specifications), PNSN B_(Applicant) was ordered to produce a valid Family Care Plan Certificate by the morning of July 22, 2000. PNSN B_(Applicant) had completed the Family Care Plan Certificate which is dated May 22, 2000. (Tab BB). In accordance with OPNAVINST 1740.4A, it is the responsibility of the individual to complete the necessary Family Care Plan Certificate. In addition, it is the responsibility of the command to assign as a collateral duty to a sailor to monitor and track all personnel assigned to ensure that each sailor has a Family Care Plan Certificate filed as applicable. PNSN B_(Applicant) did complete the form on May 22, 2000, it is the responsibility of the command to obtain and file appropriately. In response to Violation of UCMJ Article 87 (Missing Ships Movement), PNSN B_(Applicant) had in receipt Temporary Additional Duty orders (TAB H) to report to Commanding Officer, Naval Air Station NAS (Others), Whidbey Island, WA approved by his Commanding Officer. He was to report on July 24, 2000 for a period of ninety (90) days. So therefore, PNSN B_(Applicant) was not in violation of UCMJ Article 87 (Missing Ships Movement). These charges were never disposed of at Non-Judicial Punishment, so therefore the charges were never substantiated.

In addition, four out of the five, Record of Counseling sheets reflected in (Tab J), indicates no signature by PNSN B_(Applicant) and are not even dated. These Record of Counseling’s should not even be considered for Misconduct Discharge, they are incomplete and could have been completed without PNSN B_(Applicant)’s acknowledgement.

On November 27, 2000, the Commanding Officer, VAQ-142 processes PNSN B_(Applicant) for Misconduct (due to Serious Offenses). The arbitrary and capricious actions of the Commanding Officer, were not warranted for this type of discharge.


PNSN B_(Applicant) did not once receive Non-Judicial Punishment, so therefore PNSN B_(Applicant) has no record of non-judicial punishment and has documented only one Record of Counseling. The discharge was unwarranted, bias and should not have been processed and approved up the chain of command.

 512 The Board Can and Should weigh Other Factors That Support Upgrading PNSN B_(Applicant)’s Discharge
This Board is not limited to the explicitly named considerations above, but may also weigh other factors that support granting clemency.

Upon reporting TAD to Naval Air Station (others), NAS, Whidbey Island on July 24, 2000, PNSN B_(Applicant) performed his duties in a flawless manner. Command Master Chief, Electronic Attack Wing, U. S. Pacific Fleet (HTCM(AWISW) L_ M_) writes,

“PNSN B_(Applicant) was sent to me TAD prior to VAQ-142 departing for cruise. His CMC called me to see if I could put him to work at the WING. I put him in First Lieutenant for about two weeks. He did a good job for me so I asked YNCM B_ to put him at PSD so he could work in his rate until the squadron got back.” (Tab CC).

LTJG E_ D_ H_, COMVAQW1NGPAC (Ni) writes,

“To Whom It May Concern - PNSN B_(Applicant) was assigned TAD to COMVAQWINGPAC for a short period of time prior to his reassignment TAD to PSD. While I did not directly supervise PNSN B_(Applicant), I have first-hand knowledge of his solid performance of duties. PNSN B_(Applicant) did a good job in assisting the staff on routine building and space maintenance issues. Fitness for retention or advancement in the Navy.” (TAB DD).

Officer-in Charge, Personnel Support Activity Detachment, Whidbey Island, WA writes,

“Seaman B_(Applicant) served at my detachment in a Temporary Additional Duty status from August through October 2000. He was assigned to the Service Record Maintenance Vault as the section supervisor, managing the workload of 2-3 junior personnel, ensuring 100 percent accountability for over 4,000 enlisted and officer service records. With thoroughness and professionalism, he oversaw the updating of hundreds of service record entries for over 79 unit Identification Codes, including awards, course completions, and miscellaneous entries. Though only on board a short period of time, Seaman B_(Applicant) ‘s noteworthy performance resulted in his selection as the detachment “Professional of the Month” for the month of September 2000. My observation of Seaman B_(Applicant)’s performance is limited to the three months he was assigned to my detachment, during which time he impressed me as intelligent, articulate, and high motivated. I have no knowledge of his performance or behavior at any other time. Based on his performance at my detachment, I believe he has potential for continued naval service and recommend his retention.” (TAB EE).

It is also noted that PNSN B_(Applicant) passed the advancement exam to Personnelman Third Class and was frocked to Personnelman Petty Officer Third Class by his command before his discharge. (Tab FF).
Conclusion

PNSN B_(Applicant) respectfully requests that this Board upgrade his discharge characterization to honorable. Based on the foregoing mitigating discrimination, harassment surrounding his naval career. The harassment and discrimination was evident while stationed at VAQ-142. Upon PNSN B_(Applicant)’s TAD tour to Naval Air Station Whidbey Island all of his superiors had nothing but accolades for PNSN B_(Applicant)’s performance and dedication to duty. All of which recommended retention in the Naval Service. The arbritary and capricious actions by the Commanding Officer, VAQ-142 were evident, in that, PNSN B_(Applicant) never was awarded non-judicial punishment, and records of counseling were never signed and dated. PNSN B_(Applicant)’s employer, family and friends vouch for his spotless character and professionalism throughout his life.

This Board has ample grounds to upgrade his discharge and change his RE-Code from RE-4 to RE-1.

Respectfully submitted,
[signed]
D_ P. S_
Attorney for Applicant
The Law Offices of D_ P. S_
(attorneys address deleted)
(attorneys telephone and fax numbers deleted) ”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Index of Tabs (2 pages)
Letter to The Legal Officer, VAQ-132, NAS, Whidbey Island from applicant, undtd
(6 pages)
Statement from applicant, dtd June 27, 2000
 E-Mail-Requesting information regarding first duty station – spilt orders, dtd June 20, 2000 (2 pages)
Email from MMCS R_
Appointment as Preliminary Inquiry Officer dated June 26, 2000
Formal Equal Opportunity - Sexual Harassment Complaint message, dtd June 26, 2000 (2 pages)
CO, Electronic Attack Wing, endorses U. S. Pacific Fleet letter 5354 Ser N00/0394, dtd August 16, 2000
Investigation of a formal Equal Opportunity (EO)) complaint, dtd July 17, 2000
Navy Equal Opportunity (EO/Sexual Harassment (SH) Formal Complaint dtd July 17, 2000 (NAVPERS 5354/2)/w continuance sheets (8 pages)
TEMADD Travel Order dtd July 24, 2000
Commanding Officer’s discharge recommendation, dtd November 27, 2000
(2 pages)

Administrative separation processing notice – notification procedure, dtd November 9, 2000
Officer in Charge recommendation for retention letter, dtd November 16, 2000
Applicant’s request for retention in service, dtd November 15, 2000 (2 pages)
Chronological summary of evidence (9 pages)
Report and disposition of offense(s), dtd May 12, 2000 (2 pages)
Report and disposition of offense(s), dtd June 23, 2000 (2 pages)
Report and disposition of offense(s), dtd September 1, 2000 (2 pages)
Applicant’s acknowledgement and waiver of rights, dtd June 16, 2000
Notification and election of rights (4 pages), dtd June 16, 2000
Statement from YNC G_ M_, dtd May 17, 2000
Witness statement from L_ S_, dtd May 11, 2000
Witness statement from PN3 H_, dtd May 11, 2000
Witness statement from YN3 A_ P_, dtd May 11, 2000
Witness statement from AD1 J_ A. W_, dtd May 11, 2000
Witness statement from YN V_ C_ R_, dtd May 12, 2000
Quarters, 0900 Office Discussion, dtd March 4, 2000
Document entitled “Clean Up for Inspection”, dtd April 3, 2000
Statement concerning events on June 7, 2000 from G_ M_
Statement from J_ A. W_, dtd June 7, 2000
Statement from R_ C. B_, dtd June 16, 2000
Record of Counseling, undtd
Record of Counseling, undtd
Record of Counseling, undtd
Record of Counseling, undtd
Record of Counseling, dtd July 13, 2000
Memorandum from applicant, dtd May 17, 2000
Photo Copy of Columbus University Official Student Transcript
Leave request/authorization, dtd July 11, 2000
Leave request/authorization, dtd July 14, 2000
Leave request/authorization, dtd November 7, 2000
First Endorsement from Commander recommending administrative separation, dtd December 22, 2000
Authorization for discharge from Commanding Officer, Naval Air Station, Whidbey Island, WA, dtd January 4, 2001 (2 pages)
Memorandum for Board for Correction of Naval Records from G_ M_ & Associates Attorneys at Law, dtd dated March 25, 2002 (3 pages)
The Department of Navy, Board for Correction of Naval Records letter to applicant, dtd December 8, 2002 (3 pages)
The Department of Navy, Board for Correction of Naval Records letter to G_ M_ and Associates, dtd December 11, 2002
The Department of Navy, Board for Correction of Naval Records letter to applicant, dtd April 23, 2003, (2 pages)
The Department of Navy Board for Correction of Naval Records letter to applicant, dtd July 22, 2003, (2 pages)
The Department of Navy Board for Correction of Naval Records letter to applicant, dtd May 20, 2004, (2 pages)
The Department of Navy Board for Correction of Naval Records letter to applicant, dtd July 16, 2004. , (2 pages)
The Department of Navy Board for Correction of Naval Records letter to applicant, dtd November 4, 2004 , (2 pages)
Acceptance of Application for Discharge Review dtd June 21, 2004
The Department of Navy, Secretary of the Navy, Council of Review Boards Notice of Decision that Discharge is Proper as Issued dtd February 8, 2005 (pages 1,3, and 5)
Job verification from Angel International Inc, dtd May 12, 2005
Character reference from LtCol B. S. B_ (RET), undtd
Character reference from R_ C_, undtd
Character reference from A_ K_, undtd
Bachelor of Business Administration degree from Columbus University, dtd April 28, 2004
Copy of Columbus University Official Student Transcript (Master Degree MBA), dtd December 28, 2004
Family Care Plan Certificate with powers of attorney, dtd May 22, 2000 (4 pages)
Special Power of Attorney signed by S_ B_, dtd May 16, 2000 (2 pages)
Special Power of Attorney signed by the applicant, dtd June 9, 2000
Command Master Chief, Electronic Attack Wing U. S. Pacific Fleet letter, dtd November 15, 2000
E_ D_ H_ LTJG, USN letter, dtd November 15, 2000.
Officer-in-Charge, Personnel Support Activity Detachment letter, dtd November 16, 2000.
Professional of the Month certificate, dtd August 2000
 Examination Profile Information Sheet for advancement to Personnelman Third Class for applicant
Cover letter from applicant’s attorney, dtd July 12, 2005
Applicant’s DD Form 214 (Member 1 and 4)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19990629 - 19990706      COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19990707             Date of Discharge: 20010105

 Length of Service (years, months, days):

         Active: 01 05 29
         Inactive: None

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

 Age at Entry: 33

 Years Contracted: 4

 Education Level: 16                                 AFQT: 57

 Highest Rate: PNSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.7 (3)                       Behavior: 2.3 (3)                 OTA: 2.45

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): None


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

UNDER HONORABLE CONDITIONS (GENERAL) /MISCONDUCT, authority: MILPERSMAN, Article 1910-142 (formerly 3630605).

 Chronological Listing of Significant Service Events :

990629:  Pre-service waiver for 3 dependents granted.

000208:  Counseling: Advised of deficiency (personal behavior (disrespectful and argumentative)), notified of corrective actions and assistance available. [Documentation submitted by applicant]

000209:  Counseling: Advised of deficiency (recording device in sensitive workspace), notified of corrective actions and assistance available. [Date extracted from chronological summary of evidence.]

000210: Counseling: Advised of deficiency (Interception of communications, in regards to 09 Feb 00 counseling chit), notified of corrective actions and assistance available [Date extracted from chronological summary of evidence.] Applicant refused to sign counseling chit.

000303:  Counseling: Advised of deficiency (unauthorized absence), notified of corrective actions and assistance available. [Date extracted from chronological summary of evidence.]

000407:  Applicant submitted an envelope on the CO’s desk with the words “formal complaint”. [Extracted from Chronological summary of evidence.]

000512:  Report and disposition of offense(s) NAVPERS 1626/7:
                  Charge: Violation of UCMJ Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer).
 Specification 1: In that Personnelman Seaman R _ B _(applicant) , U.S. Navy, Electronic Attack Squadron ONE FOUR TWO, NAS Whidbey Island, Washington, on active duty, on or about 11 May 2000, did treat with disrespectful language toward G_M_ , a chief petty officer, then known by the said R _ B _(applicant) to be a superior chief petty officer, who was then in the execution of her office, by saying to her, “You have been in twenty years, but you behave like a Seaman Recruit, or words to that effect.
 Specification 2: In that Personnelman Seaman R_ B_(applicant), U.S. Navy, Electronic Attack Squadron ONE FOUR TWO, NAS Whidbey Island, Washington, on active duty, on or about 11 May 2000, did treat with disrespectful deportment toward A_ A. P_, a third class petty officer, then known by the said R_ B_(applicant) to be a superior petty officer, who was then in the execution of her office, by continuously being argumentative while under instruction. [Documentation submitted by applicant]
000517:  Applicant waived right to see lawyer and would sign the report chit.

000623:  Report and disposition of offense(s) NAVPERS 1626/7:
         Charge: Violation of UCMJ Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer).
         Specification: In that Personnelman Seaman R _ B_(applicant) , U.S. Navy, Electronic Attack Squadron ONE FOUR TWO, NAS Whidbey Island, Washington , on active duty, on or about 7 June 2000, did treat with disrespectful language toward G_ M_, a chief petty officer, then known by the said R _ B_(applicant) to be a superior chief petty officer, who was then in the execution of her office, by saying to her, “Chief, why are you always sticking your nose in my personal business,” or words to that effect. The command was unable to bring legal action, due to operational deployment. [Documentation submitted by applicant]

000627:  Investigation of formal complaint submitted 000407 was concluded with no evidence found to support applicant’s claims. [Extracted from Chronological summary of evidence.]

000713:  Counseling: Advised of deficiency (other), notified of corrective actions and assistance available.

000717:  Applicant turned in Formal EO complaint. [Extracted from Chronological summary of evidence.]

000724:  EO investigation completed. Complaint was found to be unsubstantiated due to insufficient corroboration. Reports forwarded to CNAP for final review. [Extracted from Chronological summary of evidence.]

000901:  Report and disposition of offense(s) NAVPERS 1626/7:
         Charge 1: Violation of UCMJ Article 92 (Failure to obey order or regulation).
 Specification 1: In that Personnelman Seaman R_ B_(applicant), U.S. Navy. Electronic Attack Squadron ONE FOUR TWO, on active duty, having knowledge of a lawful order issued by LTJG C_ J. P_, U.S. Navy, to report to the Legal Office at Hangar Nine, with a valid Family Care Plan Certificate, on the morning of 22 July 2000, an order which it was his duty to obey, did, on board NAS Whidbey Island, Washington, on or about 22 July 2000, fail to obey the same by failing to report.
Specification 2: In that Personnelman Seaman R_ B_(applicant), U.S. Navy. Electronic Attack Squadron ONE FOUR TWO, on active duty, having knowledge of a lawful order issued by the Bureau of Naval Personnel, to wit: OPNAV Instruction 1740.4A, stating a new or updated Family Care Plan Certificate must be submitted to the commanding officer within 60 days of a change in personal or family circumstances, an order which it was his duty to obey, did, on board NAS Whidbey Island, Washington, on or about 22 July 2000, fail to obey the same by failing to provide a valid Family Care Plan Certificate.
Charge 2: Violation of UCMJ Article 87 (Missing Movement).
Specification: In that Personnelman Seaman R_ B_(applicant), U.S. Navy, Electronic Attack Squadron ONE FOUR TWO, NAS Whidbey Island, Washington, on active duty, did, on board NAS Whidbey Island, on or about 26 July 2000, through neglect miss the movement of flight Airlift L-1011 with which he was required in the course of duty to move. [Documentation submitted by applicant]
001113:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct - commission of a serious offense (x4). [Documentation submitted by applicant]
001115:  Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation and to submit statement. [Documentation submitted by applicant]
001115:  Applicant’s request for retention.

 001116:  Officer in Charge, Personnel Support Activity Detachment, Whidbey Island, WA recommended applicant for retention.

001127:  Commanding Officer, Electronic Attack Squadron 142 recommended discharge by reason of misconduct-commission of a serious offense. Commanding Officer’s comments: “PNSN B_(Applicant) has shown little capacity for assimilation into the naval service. Despite this command’s best efforts to counsel and educate him on proper military behavior and responsibilities, he has demonstrated a repeated problem with authority by being disrespectful and insubordinate with members of his chain of command. He has also demonstrated a problem with following the lawful orders of his superiors. It is for these reasons that I most strongly recommend he be administratively separated from the Navy, as the burden he places on this command far outweighs his value added [Documentation submitted by applicant]

001222:  Commander, Electronic Attack Wing, U.S. Pacific Fleet forwarded the recommendation to Commander Officer, Naval Air Station, Whidbey Island applicant’s administrative separation, recommending approval.

010104:  Commanding Officer, Naval Air Station, Whidbey Island, WA directed the Applicant's discharge with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense.

041222:  NDRB documentary record review Docket Number ND04-01035 conducted. Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20010105 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of under honorable conditions (general). 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). The Board presumed regularity in the conduct of governmental affairs (E).

 The Applicant requests an upgrade to his Navy discharge characterization from General Under Honorable Conditions to Honorable. The NDRB advises the Applicant that 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. 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 was marred by violations of Articles 87, 91 and 92 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.

 Applicant requests reinstatement to active duty as of date of separation with back pay, allowances, and credit for time in grade for pay, promotion, and retirement purposes. The Applicant should be aware those issues a re not within the authority of the NDRB, regulations limit the Board’s review to a determination on the propriety and equity of the discharge. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning redress of the Applicant’s issues. Relief not warranted.
The Applicant respectfully requests that his RE-Code be changed from RE-4 to RE-1. 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. Relief denied.



The Applicant contends he was the recipient of acts of discrimination, which led to arbitrary and capricious actions by seniors in his chain of command. The board found that the EEO investigation was completed on 20000724. Based on the official record, the report found the charges were unsubstantiated due to insufficient corroboration. For the record, the Board questioned the Applicant about the nature of the discrimination, requesting specific detail of the "arbitrary" and "capricious acts". The Applicant was not able to provide specific incidents, but provided very general scenarios, some of which amounted to second party hearsay and allegations. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. As such, this Board presumed that Applicant’s discharge was regular in all respects. Relief denied.

The Applicant states he was charged with 2 specifications of violation of UCMJ Article 91(insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer) on 20000517. The Applicant contends that these charges were never disposed of at non judicial punishment (NJP), so therefore the charges were never substantiated. The Board advises the Applicant that a commission of a serious offense does not require adjudication by non judicial, judicial proceedings or civilian conviction; however, the offense must be substantiated by a preponderance of evidence. The evidence of record shows that there is credible and documented evidence, that the Applicant violated UCMJ Article 91, by being insubordinate to numerous individuals within his chain of command. The statements and documents provided by the Applicant do not refute the presumption of regularity in this case. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his action. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider the Applicant’s discharge proper and equitable. For the Applicant’s information, the decision to administratively separate a service member is made independently of the imposition of NJP per regulation. Accordingly, relief on this basis is not warranted. Relief denied.

The Applicant's counsel contends that the Commanding Officer, VAQ-142 processing of the Applicant for misconduct (due to Serious Offenses), was arbitrary, capricious and not warranted for this type of discharge. Further that the Applicant did not once receive NJP and has only one documented record of counseling. Based on these issues, the discharge was unwarranted, biased and should not have been processed and approved up the chain of command. The Board found that there was no evidence in the record, nor had the Applicant produced any evidence, to support the contention that he was wronged by his Commanding Officer resulting in his general discharge. The record contains no evidence of any wrongdoing by the Applicant’s Commanding Officer or anyone else for that matter in the discharge process. The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. As such, this Board presumed that Applicant’s discharge was regular in all respects. Also the evidence of record shows that the Applicant went to Executive officer Inquiry, where credible basis was found for the charges, and the case was forwarded to the Captain for NJP. The
record shows that the Applicant refused NJP on 20000719. The NDRB advises the Applicant that while a service member may refuse NJP, that does not nullify the charges, his accountability, or the right for the command to make the charges and circumstances surrounding those charges a part of the members official record, and use it as a basis for determining the Applicant's characterization of service. The Applicant was provided the opportunity to present his case before an administrative board, but waived that right, thus accepting the discharge recommended in the letter of notification. Relief denied.

The Applicant states that since his discharge from the Navy, he has proven himself a valuable asset to the civilian community and has accomplished many goals set out in life. The Board advises the Applicant that 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 the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct, which precipitated the discharge. Relief denied.

The following is provided for the edification of the Applicant. The Applicant has exhausted his opportunities for review by the NDRB. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.




 Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 30, dated 7 Nov 00, effective 30 Aug 00 until 24 Jan 01, Article 1910-142 [formerly 3630605]. SEPARATION 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 Article 92 (Failure to obey order or regulation) and Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer) .

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 .

E. 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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