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NAVY | DRB | 2005_Navy | ND0501543
Original file (ND0501543.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY


ex-ICFA, USN
Docket No. ND05-01543

Applicant’s Request
The application for discharge review was received on 20050920. 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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060807. 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:

“Upon separation I received my DD214 which stated my separation was under other than honorable conditions. I was living in Bremerton, WA. with my girlfriend. The relationship ended & I returned home to Kansas City, MO. I had lost many items in the move that got left in Bremerton. Among those were my military records. I went to the Local VFW to apply to get a copy of my records. The provided me with a copy of my DD214 plus the 2 forms I have enclosed: NA Form 13044 & NA Form 13088. In the summer of 2005 I was told by the VFW that my record on computer still stated OTH. I showed them the Form 13088 & they said they couldn’t accept it even though it says it’s an official form of verification.”

 Applicant’s Remarks: (Taken from the DD Form 293 to the Board.):

“I have my original NA Form 13038 in my possession, it has an official seal in lower right corner. The copy I’m sending you does not have that seal because the seal does not reproduce on a copy. I would like if at all possible to retain my original.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Ltr from National Personnel Records Center, dtd September 1, 2005
Applicant’s DD Form 214 (Member Copy 4)
Applicant’s NA Form 13044, dtd December 8, 1999
Applicant’s Certification of Military Service, dtd December 6, 1999

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19900606 – 19910522               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19910523             Date of Discharge: 19931112

 Length of Service (years, months, days):

         Active: 02 05 20
         Inactive: None

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

 Age at Entry: 19

 Years Contracted: 4

Education Level: 12                                 AFQT: 48

 Highest Rate: ICFN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.1 (2)              Behavior: 3.2 (2)                          OTA: 3 .1

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


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 :

921012:  Counseling: Advised of deficiency (Fireman Apprentice B_ (Applicant) is delinquent in his qualifications as lookout and submarine warfare. On numerous occasions he has been reminded of qualification deadlines and points required per week. In addition he has been found sleeping while on his 6 hours off watch that are normally allotted to qualification. He has shown little initiative.), notified of corrective actions and assistance available.
921024:  Counseling: Advised of deficiency (While on watch as AEF under instruction FA B_ (Applicant) was directed to study and work on practical factors for qualification both submarine warfare and lookout. FA B_ (Applicant) was caught playing Gameboy Nintendo during watch standing hours.), notified of corrective actions and assistance available.
921031:  NJP for violation of UCMJ, Article 107 (2 specs):
         Specification 1: Violation of UCMJ Article 107 in that ICFA (SU) D_ L. B_ (Applicant), did, on board USS ALABAMA (SSBN 731) (GOLD), on or about 28 October 1992, with intent to deceive, sign an official record, to wit, his Helm/Planes Qualification Card, which record was totally false in that he did sign the name of another individual, to wit, MSCM (SS) Devine, and was then known by ICFA (SU) B_ (Applicant) to be so false.
         Specification 2: Violation of UCMJ Article 107 in that ICFA (SU) D_ L. B_ (Applicant), did, on board USS ALABAMA (SSBN 731) (GOLD), on or about 28 October 1992, with intent to deceive, sign
         Award: Forfeiture of ½ pay per month for 1 month, reduction to E-2 (suspended for 6 months). No indication of appeal in the record.

930219:  Letter of Instruction from the Commanding Officer, USS ALABAMA (SSBN 731) to Applicant: “Your (Applicant) performance and conduct, in particular, your inability to go to your place of duty at the prescribed time are unacceptable. This letter of instruction is written to document your poor performance, provide recommendations for corrective action and to inform you of the consequences if your performance and conduct do not show immediate improvement. You are directed to carefully manage your off-duty time so as to arrive at your appointed place of duty prior to the appointed time. Assistance is available through your entire chain of command starting with your Division Leading Petty Officer, Division Officer, Department Head and the Chief of the Boat. This letter of instruction is non-punitive in nature and will not become a part of your permanent record. This counseling is made to afford you an opportunity to undertake the recommended corrective action. Any failure to adhere to the guidelines cited above which is reflected in your future performance and/or conduct any result in disciplinary action, removal of advancement recommendation, adverse performance evaluation and make you eligible for administrative separation.”

930413:  Retention Warning: Advised of deficiency (Failure to complete ship’s and/or watchstation qualifications in a timely manner as prescribed under COMSUBPAC/COMSUBLANTINST 13061.A (SUBPERSMAN), ) notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 930512:  Counseling: Advised of deficiency (FN B_ (Applicant) has been formally counseled about his poor quals progress and the need for him to maintain a persistent effort. After being “Qual-Stud-of-the-week” with 63 points earned FN B_ (Applicant) went two weeks without any points, subsequently “DINQ” once again. FN B_ (Applicant) has been informally counseled in the past about maintaining a sustained effort in qualifications.), notified of corrective actions and assistance available.

930515:  Counseling: Advised of deficiency (FN B_ [Applicant] failed to perform PMS assigned to him with in the questioned dates. He claimed that he didn’t know about it. He was counseled to check the PMS schedule regularly. The PMS was rescheduled the following week where he was informed that it would be observed by the Division Officer as a weekly PMS spot check. FN B_ (Applicant) failed to get Division Officer to observe PMS. He substantially marked off the PMS as being done. When confronted on PMS spot check, he admitted that he did not do the PMS.), notified of corrective actions and assistance available.
930518:  NJP for violation of UCMJ, Article 92: Dereliction in the performance of in that ICFN (SU) D_ L. B_ (Applicant), USN, who knew of duties on board USS ALABAMA (SSBN 731) (GOLD) of his duties to perform monthly preventive maintenance system (PMS) requirement M-1R “Clean Ventilation Filters” from about 10 May 1993 to 17 May 1993, was derelict in the performance of those duties in that he willfully failed to perform such PMS requirements, as it was his duty to do so.
 Violation of UCMJ, Article 107: False official statements in that ICFN (SU) D_ L. B_ (Applicant), USN, did, on board USS ALABAMA (SSBN 731) (GOLD), during the period 10 through 17 May 1993, with intent to deceive, sign an official record, to wit, PMS Schedule (Compact) EEO3 SFR-1-93 dated 10 May 1993, the second of two M-1R PMS requirements, which record was totally false in that he did sign the second of two M-1R events without actually having performed the required PMS, and was then known by ICFN (SU) B_ (Applicant) to be so false.
         Award: Oral reprimand, forfeiture of $456.00 pay per month for 1 month, reduction to E-2. No indication of appeal in the record.
930519:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by your NJP for violation of UCMJ Articles 92 and 107 conducted 18 May 1993.

930707:  Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.
930820:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to commission of a serious offense that such misconduct warranted separation, and recommended discharge under other than honorable conditions.
930920:  Commanding Officer, USS ALABAMA (SSBN 731) (GOLD), concurs with the findings of the Administrative Discharge Board and recommended to the Chief of Naval Personnel (PERS-83) that the Applicant be discharged under other than honorable conditions by reason of misconduct due to commission of a serious offense.

931012:  BUPERS message to USS ALABAMA: The record of proceedings of the Applicant’s administrative board did not have the senior member authenticating signature. Ensure the senior member reviews the record of proceedings, then forward the last page of the record of proceedings with the senior member’s authenticating signature.

931028:  BUPERS directed the Applicant's discharge 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 19931112 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 NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted. There is no evidence of impropriety or inequity in the Applicant’s discharge. On 19930519 the Applicant was notified by his Commanding Officer of the intended recommendation for the Applicant’s discharge under other than honorable conditions due to commission of a serious offense. The Applicant elected to appear before an Administrative Discharge Board, which convened on 19930820 and found by unanimous vote that the Applicant had committed misconduct due to commission of a serious offense, that such misconduct warranted separation, and recommended discharge under other than honorable conditions. On 19930920 the Applicant’s Commanding Officer concurred with the recommendations of the Administrative Separation Board and forwarded his recommendation to the Chief of Naval Personnel. On 19931028 the Bureau of Personnel (BUPERS) directed that the Applicant be discharged under other than honorable conditions by reason of misconduct due to commission of a serious offense. The Board verified that the Applicant’s DD Form 214 is correct . Relief on this basis 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 a retention warning and 2 nonjudicial punishment proceedings for violations of Articles 92 (dereliction of duty) and 107 (3 specs of false official statements) of the UCMJ.
Violations of UCMJ Articles 92 and 107 are considered serious offenses, which are defined as any offense for which a punitive discharge is an authorized sentence under the UCMJ. In addition, the Applicant was counseled on 4 occasions and received a Letter of Instruction, advising him of deficiencies in his performance and providing corrective actions. 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 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 92 , Willful Dereliction of Duty and Article 107, False Official Statements.

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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