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NAVY | DRB | 2005_Navy | ND0501334
Original file (ND0501334.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY


ex-AEAA, USN
Docket No. ND05-01334

Applicant’s Request
The application for discharge review was received on 20050802. The Applicant requested a documentary record discharge review and that his characterization of service be changed to honorable. The Applicant did not designate a representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060427. After a thorough review of all available 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 characterization of the service shall not change. The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to the commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Applicant’s issues, as stated on the application:

“I need the upgrade so I may take a position with a company so I can support my family better. I feel the OTH was unjustified or possibly personal. I still have not received my packout from HC-9 where pictures are from.”
Applicant’s remarks, as stated on the application:

“It has been 11 years and I have a great shot at a good job. I really hope this can be fixed. Thank you!”
Documentation
The Applicant did not provide additional documentation for the Board’s consideration, therefore only the service and medical records were reviewed.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19890721 – 19900625               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19900626             Date of Discharge: 19940208

 Length of Service (years, months, days):

         Active: 03 07 13
         Inactive: None

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

 Age at Entry: 17 (Parental Consent)

 Years Contracted: 4 (12 month extension)

 Education Level: 12                                 AFQT: 56

 Highest Rate: AEAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.6 (3)     Behavior: 3.4 (3)                 OTA: 3 .66 (3)

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal, Southwest Asia Service Medal with Bronze Star, Sea Service Deployment 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 :

920210:  NJP for a violation of the UCMJ, Article 134 (obtaining services under false pretenses).
         Award: Oral reprimand, restriction and extra duty for 30 days. No indication of appeal in the record.

920324:  Retention Warning: Advised of deficiency (fraudulently using a shipmate’s calling card and financial irresponsibility - ten insufficient fund checks totaling $425.13 to the Navy Exchange), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 920427:  NJP for a violation of the UCMJ, Article 86 (unauthorized absence).
         Award: Extra duty for 30 days. No indication of appeal in the record.

931103:  NJP for a violation of the UCMJ, Article 134 (impersonating a commissioned officer).
         Award: Forfeiture of $100 per month for 1 month, reduction to E-2. No indication of appeal in the record.
931215:  Commanding Officer, Helicopter Combat Support Squadron Two notified the Applicant of his intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and advised the Applicant of his rights.
931220:  The Applicant elected not to consult with counsel, did not object to the separation, and elected to waive all rights.

931222:  Commanding Officer, Helicopter Combat Support Squadron Two recommended to BUPERS the discharge of AEAA Petro (Applicant) by reason of misconduct due to a pattern of misconduct with a characterization of service as general (under honorable conditions). Commanding Officer’s comments: “Airman Apprentice P_ (Applicant) has proven himself both a burden and liability to this command. He has received NJP three times during this enlistment, once at this command. Despite counseling at all levels he has failed to meet the minimum standards a navy lifestyle requires. AA P_ (Applicant) clearly does not belong in the military. It is my recommendation that he be separated with a general discharge.”

931230:  BUPERS advised Commanding Officer, HELSUPPRON TWO that the service member does not meet the criteria for a pattern of misconduct i.e. no page 13 counseling. The CO was advised that he may reprocess the member for administrative separation by reason of misconduct due to the commission of a serious offense.

940112:  Commanding Officer, Helicopter Combat Support Squadron Two notified the Applicant of his intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

940112:  The Applicant elected not to consult with counsel, did not object to the separation, and elected to waive all rights.
940113:  Commanding Officer, HELSUPPRON TWO recommended to BUPERS the discharge of AEAA Petro (Applicant) by reason of misconduct due to the commission of a serious offense with a characterization of service as general (under honorable conditions). Commanding Officer’s comments: “Airman Apprentice P_ (Applicant) has proven himself both a burden and liability to this command. He has received NJP three times during this enlistment, once at this command. Despite counseling at all levels he has failed to meet the minimum standards a navy lifestyle requires. AA P_ (Applicant) clearly does not belong in the military. It is my recommendation that he be separated with a general discharge.”

940127:  BUPERS directed the Applicant's discharge 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 19940208 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 all available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

A service member may be discharged by reason of misconduct (due to the commission of a serious offense) when he has committed misconduct that would warrant a punitive discharge if tried by special or general court-martial. T he Applicant’s service was flawed by three nonjudicial punishments (NJP) for violations of the UCMJ, Article 86 (unauthorized absence) and Article 134 (obtaining services under false pretenses and impersonating a commissioned officer). Reference (A) defines each violation of the UCMJ Article 134 ( obtaining services under false pretenses and impersonating a commissioned officer ) as the commission of a serious offense, the misconduct for which the Applicant was discharged. Applicable regulations dictate that when a member is discharged due to the commission of a serious offense an h onorable characterization of service is not authorized unless the record is otherwise so meritorious that any other characterization would be clearly inappropriate. Relief denied.

The Applicant requested that his discharge be upgraded for the purpose of employment. There is no requirement or law that grants recharacterization on the issue of obtaining employment and this issue does not serve to provide a foundation upon which the Board can grant relief. Additionally, the Board has no authority to upgrade a discharge for the purpose of enhancing medical, housing, employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. This issue is without merit. Relief is not warranted.

The Applicant contends that his discharge was personal. The NDRB takes this allegation seriously. Nevertheless, it remains the Applicant’s responsibility to substantiate his allegations through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention of a personal vendetta. Furthermore, the record contains no evidence of any wrongdoing by the Applicant’s Commanding Officer or any other member of his chain of command. In the absence of documented evidence, the Board considered his discharge proper and equitable. 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 other evidence related to his discharge at that time. 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 each violation of the UCMJ, Article 134.

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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