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NAVY | DRB | 2005_Navy | ND0501299

Original file (ND0501299.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. ND05-01299

Applicant’s Request

The application for discharge review was received on 20050728. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293. In a letter, dated April 04, 2005, the Applicant was informed that he was approaching the 15-year point for review by this Board. Applicant failed to respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060621. 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 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 would like to upgrade my discharge and re-enter naval service. I had financial problems at discharge. I still have some, however, back in service will help. I am still highly dedicated to naval service. I would like to get back in and retire.”

Applicant’s Remarks: (Taken from the DD Form 293): “I have helped recruiters with getting more recruits. The need is more than financial. I am still very military oriented.”

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Resume

PART II - SUMMARY OF SERVICE

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

         Inactive: USNR (ACDUTRA)         19830708 – 19840127               HON
         Inactive: USNR                   19840128 – 19840327               HON
Inactive: USNR (DEP)              19840328 – 19840603               COG
Active: USN                                 19840604 – 19880329               HON
         Inactive: USNR (DEP)              19880809 – 19880816               COG

Period of Service Under Review :

Date of Enlistment: 19880817             Date of Discharge: 19910927

Length of Service (years, months, days):

         Active: 03 01 11
         Inactive: None

Time Lost During This Period (days):

         Unauthorized absence: none
         Confinement:              none

Age at Entry: 23

Years Contracted: 4

Education Level: 12                                 AFQT: 77

Highest Rate: RM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: 3.2 (5)     Behavior: 2.7 (5)                 OTA: 3 .20

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Good Conduct Award, National Defense Service Medal.

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

UNDER OTHER THAN HONORABLE CONDITIONS/ Misconduct - commission of a serious offense , authority: MILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events :

880817: Reenlisted this date for a term of 4 years.

900712: Summary Court-Martial.
         Charge: violation of the UCMJ, Article 132:
         Specification: Did, on or about 6 October 1989, presenting a DD Form 1351-2, Travel Voucher, and a DD Form 1351-4. Voucher Claim for Dependent Travel and Dislocation or Trailer Allowance, to the Disbursing Officer, USS WASP, an officer of the United States duly authorized to approve and pay such claim, present for approval and payment a claim against the United States in the amount of $623.26 for travel pay and per diem for his wife, G_ P_, and his son, D_ P_, from Long Beach, California, to Norfolk, Virginia, which claim was false and fraudulent in the amount of $364.09, in that his wife, G_ P_, did not travel from Long Beach, California, to Norfolk, Virginia, and was then known by the said Radioman Second Class M_ I. P_, U.S. Navy, to be false and fraudulent.
         Finding: to Charge and the specification thereunder, guilty.
         Sentence: Restricted to the limits of the USS WASP (LHD 1), for a period of 45 days.
         CA action 900817: The sentence is approved and will be executed, but the execution of that part of the sentence extending to restriction in excess of 20 days is suspended for 6 months from the date of this action, at which time, unless the suspension is sooner vacated, the suspended part of the sentence will be remitted without further action.

900724: Retention Warning: Advised of deficiency (Violation of the UCMJ, Article 123 (Uttering a bad check, failure to pay just debts.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

900828: Retention Warning: Advised of deficiency (Violation of the UCMJ, Article – (Private indebted ness to junior subordinate.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910712: NJP for violation of UCMJ, Article 134: Being indebted to Carmel Financial Corporation, Inc. in the sum of $1598.05, of which $734.00 is past due, which amount became due and payable on or about June 1990, did from about June 1990 to May 1991, dishonorably fail to pay said debt.
Award: Restriction and extra duty for 30 days, reduction to E-4 (suspended for 3 months). No indication of appeal in the record.

910712: Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to failure to pay just debts as evidenced by entries contained in your service record relating to your NJP for failure to pay just debts; and by reason of misconduct due to the commission of a serious offense as evidenced by entries contained in your service record relating to your SCM conviction of filing a fraudulent claim against the Government, and to your NJP of failure to pay just debts.

910712: Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation and the right to submit statements on own behalf either verbally or in writing before an Administrative Board or in writing if an Administrative Board is not convened.

910902: Commanding Officer, USS WASP (LHD 1) recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and by reason of misconduct due to failure to pay just debts. Commanding Officer’s comments: “Enclosures (1) through (9) are forwarded for your consideration. RM2 M_ I. P_, (Applicant) USN, has had one SCM for filing a false travel claim and one NJP for failure to pay just debts. Additionally, RM2 P_ (Applicant) had been repeatedly counseled concerning his lack of financial responsibility. This command has received numerous phone calls and letters regarding RM2 P_’s (Applicant) indebtedness problems, which resulted in this being counseled by the Command Financial Advisor. A budget was prepared for RM2 P_ (Applicant) but this effort was fruitless as he failed to provide a complete list of his creditors to the Command Financial Advisor. RM2 P_’s (Applicant) performance has been well below average. He has been counseled regarding these deficiencies as well as his disciplinary problems, and financial problems by all levels of his chain of command, including this command Chaplain, Personnel Officer, and Legal Officer. All of this counseling has been to no avail as RM2 P_ (Applicant) performance continues to decrease on a daily basis. In short, RM2 P_ (Applicant) has become an administrative burden to this command. He requires constant supervision and is either unwilling or incapable of performing at acceptable standards. All of the time expended in an effort to aid RM2 P_ (Applicant) with his problems has been wasted as he is apparently unwilling to help himself. I have reviewed RM2 P_’s (Applicant) records and firmly believe that he has absolutely no potential for continued successful service in the U.S. Navy. It is therefore, most strongly recommended that RM2 P_ (Applicant) be discharged from the naval service by reason of misconduct due to commission of a serious offense with an Other Than Honorable Discharge.”

910912: BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19910927 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).

The Applicant requests an upgrade to facilitate his reentry into the Naval Service. There is no requirement or law that grants recharacterization solely on the issue of enhancing reenlistment potential and this issue does not serve to provide a foundation upon which the Board can grant relief. The Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. Relief is not warranted.

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 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 two retention warnings (one was for violation of Article 123 of the UCMJ), one nonjudicial punishment proceeding for violation of Article 134 of the UCMJ, and a summary court martial for violation of Article 132 of the UCMJ. Violations of Articles 123, 134, and 132 of the UCMJ are all considered serious offenses. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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), effective 15 Aug 91 until
04 Mar 93, 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 132 – frauds against the United States, Article 123A – writing checks with insufficient funds (intent to deceive), and Article 134 – dishonorably failing to pay debt.

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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NAVY | DRB | 2005_Navy | ND0501299

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