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NAVY | DRB | 2005_Navy | ND0501326
Original file (ND0501326.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-SH3, USN
Docket No. ND05-01326

Applicant’s Request
The application for discharge review was received on 20050808. 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 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 20060406. 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 feel that I was unjustly Discharged from Naval Service. I felt that I was in a round about way, coerced into accepting the terms of my discharge. I was originally told I would receive an Honorable Discharge. Then it was downgraded to General/under Honorable conditions then finally given an Other Than Honorable. They couldn’t reach a decision for the cause of my Discharge, so they generalized it under misconduct. It was simply a non-supportive business arrangement gone wrong. My initial NJP, both charges were dropped. Then my C.O. added a charge, busted me in ranks from E-5 to E-4 & submitted me for Administrative separation because I was now an E-4 with over 17 years of Naval Service. Then Double Jeopardy was committed to lead up the final outcome. I was 29 days from my official 18 yrs of Active Duty Service upon my Discharge. I reached in for Pay purposes because of my Delayed Entry Status. I ultimately would love to finish at out my Naval Service to reach my 20 years to retire. I served my country proudly & honorably up to my last Command. But if upgraded & having my re code changed also, I could continue my service with another Armed Service, if the Navy doesn’t want me. But I am a true sailor.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 4) (2 copies)
Applicant for Correction of Military Record, dtd May 25, 2005
Ltr from Department of the Navy Board for Correction of Naval Records, D. L. K_, Head, Records Section, dtd July 21, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19831208 – 19841118               COG
         Active: USN                        19841119 – 19890517               HON
                                             19890518 – 19940811               HON
                                             19940812 – 20000810               HON

 Period of Service Under Review :
Date of Enlistment: 20000811             Date of Discharge: 20021022

 Length of Service (years, months, days):

         Active: 02 02 11
         Inactive: None

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

 Age at Entry: 34

 Years Contracted: 4

 Education Level: 12                                 AFQT: 53/49

 Highest Rate: SH2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (4)             Behavior: 1.75 (4)                         OTA: 2.79

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Navy Achievement Medal, Navy “E” Ribbon (2), Good Conduct Medal (4) FPE 99Jan01, Meritorious Unit Commendation (3), Sea Service Deployment Ribbon (4), Armed Forces Expeditionary Medal (3), National Defense Service Medal (2), Southwest Asia Service Medal.


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

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

 Chronological Listing of Significant Service Events :

000811:  Reenlisted this date for a term of 4 years.

020605:  San Diego Sheriff’s Department: Deputy Sheriff A_ R_ recommendation to Investigator G_ to pursue the following charges against the Applicant: second degree burglary (4 counts), forgery (1 count), unauthorized access card (1 count), fraudulent use of access card (11 counts), petty theft (11 counts), computer-related theft crimes (5 counts), unauthorized use of personal identification information (1 count). No other information in the record.
020702:  NJP for violation of UCMJ, Article 121: Wrongful appropriation.
         Specification: In that SH2 C_ R. F_, USN, Naval Ambulatory Clinic, P. Hueneme, CA, on active duty, did, in California, from on or about July 2000 to November 2000, wrongfully appropriated money of a value about $628.50.
         Award: Reduction to E-4. No indication of appeal in the record.
020814:  NJP for violation of UCMJ, Article 134: Debt dishonorably failing to pay.
         Specification: In that SH3 C_ R. F_ (Applicant) USN, Naval Ambulatory Clinic, Pt. Hueneme, CA, on active duty, being indebted to “Payroll Loans Direct (USA) Ltd.” in the sum of $675.00 for a personal loan, which the amount became due and payable on or about 020501, did, in California, from on or about 020501 to the present, dishonorably fail to pay said debt.
 Award: Restriction and extra duty for 45 days, admonition. No indication of appeal in the record.
020816:  Applicant notified of intended recommendation for discharge by reason of misconduct due to pattern of misconduct and misconduct due to commission of serious offense. Applicant notified that the least favorable characterization of service possible is general (under honorable conditions).
020816:  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.
020823:  Commanding Officer, Naval Hospital, Camp Pendleton, recommended to Commander, Naval Personnel Command that Applicant be discharged with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense and misconduct due to pattern of misconduct. Commanding Officer’s comments: “SH3 F_ (Applicant) is being processed for administrative separation as a result of two NJP’s. On 02 July 2002, SH3 F_ (Applicant) was taken to Captain’s Mast for violation of UCMJ Article 121 – Larceny and Article 107 – False Official Statement. I dismissed the charges that he committed the offense and awarded reduction to paygrade E4. On 14 Aug 02, SH3 F_ (Applicant) was taken to Captain’s Mast for violation of UCMJ Article 134 – Debt; Dishonorably failing to pay. I found that he committed the offense and awarded 45 days restriction and 45 days extra duty. Based upon the NJP’s, it is evident that he has a pattern of misconduct and will continue to commit misconduct if he is not separated from the Navy. SH3 F_ (Applicant) did commit a serious offense discrediting to the United States Navy. Therefore, I strongly recommend that SH3 F_ (Applicant) be separated from the Naval Service with a General Discharge. I have determined that he warrants administrative separation in accordance with references (a) and (b).”
020827:  COMNAVPERSCOM , directed the Applicant's discharge with a general (under honorable conditions) discharge by reason of misconduct due to commission of a serious offense.
020903:  Administrative Separation Processing Notice – Notification Procedure ICO Applicant. [Extracted from Commanding Officer’s Letter of 020926].
020926:  Commanding Officer, Naval Hospital, Camp Pendleton, recommended to Commander, Naval Personnel Command that Applicant be discharged under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to pattern of misconduct. Commanding Officer’s comments: “SH3 F_ (Applicant) is being processed for administrative separation as a result of two NJP’s. On 02 July 2002, SH3 F_ (Applicant) was taken to Captain’s Mast for violation of UCMJ Article 121 – Larceny and Article 107 – False Official Statement. I dismissed the charges that he committed the offense and awarded reduction to paygrade E4. On 14 Aug 02, SH3 F_ (Applicant) was taken to Captain’s Mast for violation of UCMJ Article 134 – Debt; Dishonorably failing to pay. I found that he committed the offense and awarded 45 days restriction and 45 days extra duty. Based upon the NJP’s, it is evident that he has a pattern of misconduct and will continue to commit misconduct if he is not separated from the Navy. SH3 F_ (Applicant) did commit a serious offense discrediting to the United States Navy. Therefore, I strongly recommend that SH3 F_ (Applicant) be separated from the Naval Service with an Other Than Honorable Discharge. I have determined that he warrants administrative separation in accordance with references (a) and (b).”

021016:  COMNAVPERSCOM , directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.

021017:  Applicant notified of intended recommendation for discharge by reason of misconduct due to pattern of misconduct and misconduct due to commission of serious offense. Applicant notified that the least favorable characterization of service possible is under other than honorable conditions.
021017:  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.

021022:  DD-214: Applicant discharged under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20021022 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 two nonjudicial punishment proceedings for violations of UCMJ Article 121, wrongful appropriation and Article 134, dishonorably failing to pay a just debt. Under applicable regulations, a violation of UCMJ Article 121 or 134 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 states that his under other than honorable conditions discharge was the result of pressure and coercion from his command to accept the terms of his under other than honorable conditions discharge. 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 unlawful coercion in his discharge processing. There is evidence that the command initially contemplated separating the Applicant with a general (under honorable conditions) discharge and only after further review did they process the Applicant for an under other than honorable conditions discharge. However, despite the Applicant’s contentions, the Board could find nothing improper or inequitable about the command’s exercise of its discretion in re-evaluating the characterization of the Applicant’s service prior to his separation. The Applicant’s statements alone are insufficient to substantiate the Applicant’s claims. Relief denied.

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.

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 02 until Present, 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 107, false official statement, Article 121, wrongful appropriation of value more than $500.00, 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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