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


FOR OFFICIAL USE ONLY


ex-MSSN, USN
Docket No. ND05-01545

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 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 200608 25 . 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 a pattern of misconduct .

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PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I T_ T. C_ (Applicant) am asking for this upgrade because I felt that my ex-wife’s misconduct was the cause of my discharge. My then wife and I shared a checking account, but were separated. I closed this account, but she continued to write checks. My ex wife knew that my navy career was very important to me and was determined to ruin one of the most important things to me. Due to my ex wife’s indiscretions, I am unable to receive my VA benefits or use my GI Bill. I would love to have this upgrade to take advantage of these Benefits. During my enlistment with the Navy, I was fortunate to have met President Regan and worked for Admiral Davis. Also, I worked for Carrier Group Six for 6 to 9 months at Sea and was asked to work for them after our deployment. Since my separation from the Navy I have worked for Shaw E&I.”

Documentation

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

Character Reference ltr from T_ T. C_ (Applicant), undated , not signed
National Personnel Records Check for Applicant, dtd November 4, 2005
Ltr form National Personnel Records Center, dtd February 13, 2006
Applicant’s DD Form 214 (Service 2)

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PART II - SUMMARY OF SERVICE

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

         Inactive: None
         Active: USN                        19881123 – 19921111      HON

Period of Service Under Review :

Date of Enlistment: 19921112             Date of Discharge: 19951106

Length of Service (years, months, days):

         Active: 02 11 24 (Does not exclude lost time)
         Inactive: None

Time Lost During This Period (days):

         Unauthorized absence: 2 6
         Confinement:              none

Age at Entry: 18

Years Contracted: 4

Education Level: 12                                 AFQT: 26

Highest Rate: MS3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: 3.6 (2)              Behavior: 3.6 (2)                 OTA: 3 .6

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): First Good Conduct Award for Period Ending 92Nov22, Sea Service Deployment Ribbon (2 awards); Southwest Asia Service Medal, National Defense Service Medal

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

UNDER OTHER THAN HONORABLE CONDITIONS/ PATTERN OF MISCONDUCT, authority: MILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events :

921112:  Reenlisted this date for a term of 4 years.

930307:  Retention Warning: Advised of deficiency (Violation of the Uniform Code of Military Justice Article; 123 (a) making drawing, or uttering check, draft or order without sufficient funds on 93 March 03 (4 ^th letter of indebtedness offense.)), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

930524:  Commanding Officer, Naval Hospital Jacksonville, ltr assigning Applicant to the Command Directed Physical Condition Program.

940518:  Officer in Charge, Personnel support Activity Detachment, Jacksonville, ltr informing Applicant of Indebtedness to the Navy Exchange Charge Card, (NEXCARD), Home Layaway Plan .

940726: Civil Conviction Report No. 7-71-94, Jail Docket # 94252092.
         Civil Charges: 1 (M) Worthless Check (3 counts) .

940727:  Applicant to unauthorized absence on or about 0500 on 940727 .
        
940729:  Applicant from unauthorized absence on or about 0730 on 940729 .

940901:  NJP for violation of UCMJ, Article 134: General Article (Indebtedness to NAVEXCH).
Charge I: Violation of the uniform code of military justice, Article 134:
Specification 1: In that Mess Management Specialist Third Class T_ T. C_ (Applicant), United States Navy, on active duty, Naval Hospital, Jacksonville, Florida, being indebted to Navy Exchange Service command in the sum of $285.00, for purchases, which amount became due and payable about 08 March 1994, did at Jacksonville, Florida, from 08 March 1994, to 28 March 1994, dishonorably fail to pay said debt.
Specification 2: In that Mess Management Specialist Third Class T_ T. C_ (Applicant), United States Navy, on active duty, Naval Hospital, Jacksonville, Florida, being indebted to Mr. Money Check Cashier in the sum of $120.00 for purchases, which amount became due and payable about 20 December 1993, did at Jacksonville, Florida, from 20 December 1993 to 02 March 1994, Dishonorably fail to pay said debt.
Specification 3: In that Mess Management Specialist Third Class T_ T. C_ (Applicant), United States Navy, on active duty, Naval Hospital, Jacksonville, Florida, being indebted to Quick Check in the sum of $236.00 for purchases, which amount became due and payable about 05 November 1993, did at Jacksonville, Florida, from 05 November 1993, to 06 April 1994, dishonorable fail to pay said debt.
Charge II: violation of the Uniform Code of Military Justice, Article 123a:
Specification 1: In that Mess Management Specialist Third Class T_ T. C_ (Applicant), United States Navy, on active duty, Naval Hospital, Jacksonville, Florida, did, at Mr. Money Cashier, Jacksonville, Florida, on or about 20 December 1993, with intent to defraud and for the payment of a past due obligation, to wit: Personal check for the sum of $120.00 payable to Mr. Money, wrongfully and unlawfully make certain check for the payment of money upon Barnett Bank, in words and figure as follows, to wit: One Hundred an Twenty Dollars and xx/100, $120.00, then knowing that he the maker thereof, did not or would not have sufficient funds in or credit with such bank for the payment of the said check in full upon presentment.
Specification 2: In that Mess Management Specialist Third Class T_ T. C_, United States Navy, on active duty, Naval Hospital, Jacksonville, Florida, did, at Mr. Money Cashier, Jacksonville, Florida, on or about 05 November 1993, with intent to defraud and for the payment of a past due obligation, to wit: Personal check for the sum of $236.00 payable to Mr. Money, wrongfully and unlawfully make certain check for the payment of money upon Barnett Bank, in words and figure as follows, to wit: two hundred and thirty six dollars and xx/100, $236.00, then knowing that he, the maker thereof, did not or would not have sufficient funds in or credit with such bank for the payment of the said check in full upon presentment.
Specification 3: In that Mess Management Specialist Third Class T_ T. C_, United States Navy, on active duty, Naval Hospital, Jacksonville, Florida, catalog sales, Jacksonville, Florida, on or about 16 December 1993, with intent to defraud and for the payment of a past due obligation, to wit: personal check for the sum of $125.00 payable to Florida catalog sales, wrongfully and unlawfully make certain check for the payment of money upon Barnett Bank, in words and figure as follows, to wit: One hundred and twenty five dollars and xx/100, $125.00, then knowing that he , the maker thereof, did dot or would not have sufficient funds in or credit with such bank for the payment of the said check in full upon presentment.
Charge III: Violation of the uniform code of military justice, Article 86.
Specification: In that Mess Management Specialist third class T_ T. C_ (Applicant), United States Navy, on active duty, Naval hospital, Jacksonville, Florida, did on or about 0500, 27 Jul 94, without authority, absent himself from his place of duty at which he was required to be, to wit: Naval Hospital, Jacksonville, Florida, Galley, and did remain so absent until on or about 0730, 29 Jul 94, a period of about 2 days, 2 hours and 30 minutes.
Charge IV: Violation of the uniform code of military justice, Article 107
Specification: In that Mess Management Specialist third class T_ T. C_ (Applicant), United States Navy, on active duty, Naval hospital, Jacksonville, Florida, during Executive Officers inquiry, on or about 0945, 14 June 94, with the intent to deceive, make to the Executive Officer an official statement, to wit: I have all my bills consolidated into one payment through consumer credit counseling service, which statement was totally false, and was then known by the said Mess Management Specialist third class T_ T. C_ (Applicant) to be so false.
Award: Restriction and extra duty for 30 days, reduction to E-3 (suspended for 6 months). No indication of appeal in the record.

941219:  Commanding Officer, Naval Hospital Jacksonville, Letter assigning Applicant to the Command Directed Physical Condition Program.

941222:  Administrative Counseling/Warning: Applicant has been advised that he failed to meet the physical readiness standards of OPNAVINST 6110.1D due to failing the official PRT/failing to participate in/failing the body fat standards/for October 1994 official PRT.

950309:  Applicant to unauthorized absence from 0600 to 1000 on 950309 .

950417:  Apprehended at 0900 by Civil Authorities (JSO):
         Civil Charges: 1 (M) Obtaining Property/Worthless Check
                           2 (M) Violation of Probation

950418:  Applicant to unauthorized absence , arrested by civil authorities at 0 900 on 95041 7 . Date of UA 0830, 950418 .

95 0510 :  Civil Conviction Report No. 4-28-95, Jail Docket # 95139347.
         Civil Charges: 1 (M) Obtaining Property/Worthless Check
                           2 (M) Violation of Probation

950512:  Applicant from unauthorized absence at 1600 on 950512 (25 days and 7 ½ hours/surrendered).

950530:  Date of Civil Conviction: 10 May 95, charges consist of (1) obtaining property/worthless checks (2) Violation of probation.
         Sentenced: Pled no contest, adjudicated guilty $105.00 fine, 24 days in jail. Pled guilty, withheld adjudication of guilt 6 months probation, $150.00 fine.

950601:  Date of Civil Conviction: 29 Jul 94, charges consist of worthless checks (3 counts).
         Sentenced: Pled guilty to 3 counts, adjudication of guilt withheld, 6 months probation, restitution of all checks.

950608:  NJP for violation of UCMJ, Article 86 (3 Specs):
Specification 1: On or about 0600 95 Mar 09 absent himself from place of duty, to Wit: Naval Hospital Galley.
Specification 2: On or about 20, 22 and 24 Mar 95 fail to go to assigned remedial PRT.
Specification 3: On or about 18 Apr 95 absent himself from place of duty until 12May95.
         Award: Forfeiture of $567.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-3 (suspended 6 months). No indication of appeal in the record.

950628:  Date of Civil Conviction: 05 June 95, charges consist of obtaining property with worthless checks.
         Sentenced: Pled no contest. Adjudicated guilty. $105.00 fine.

950628:  Applicant notified of intended recommendation for administrative separation from the Naval service by reason of misconduct due to pattern of misconduct as evidenced by a combination of four civilian convictions and punishment under the UCMJ within your current enlistment and as evidenced by a pattern of failing to pay just debts. I f separation is approved, the characterization of your service may be Other Than Honorable .

950706:  Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

980828:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote of 3 to 0 MSSN C_ (Applicant) had committed misconduct due to pattern of misconduct, that such misconduct warranted separation, and recommended discharge under other than honorable conditions.

950830:  L etter of Deficiency from L T M_ J. J_ Jr., JAGC, USN Defense Counsel, dtd August 30, 1995.

Undated:         Commanding Officer, recommended discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct. Commanding Officer’s comments: “I concur with the Board’s findings and recommendations. MSSN C_ (Applicant)’s financial difficulties have become an administrative burden to this command. He displays a long history of such difficulties and there seems to be no end in sight. His continued failure to pay his debts is not consistent with the standards of this command or of the Navy. Retention of MSSN C_ (Applicant) would be detrimental to good order and discipline and to the operation of this command. I strongly recommend discharge from the regular component of the United States Navy with a discharge characterization of Other Than Honorable.” [Partial CO’s Ltr]

Service Record contains a partial Administrative Discharge package.

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PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19951106 by reason of misconduct due to a pattern of misconduct (A and B) with a service characterization of under other than honorable conditions. After a thorough review of the available 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 states that “I feel that my ex-wife’s misconduct was the cause of my discharge”. The Applicant contends that his problems in the Navy can be attributed to his ex-wife writing bad checks on an account that he closed after they separated. While he may feel that the actions of his ex-wife were the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The Applicant’s service was marred by one retention warning and two nonjudicial punishment proceedings for violations of UCMJ Article 86(UA, 2 Specs), Article 107 (false official statements, 3 Specs), Article 123a( Checks, etc., insufficient funds, intent to deceive, 3 Specs), Article 134 (General Article (Indebtedness), 3 Specs). For the edification of the Applicant, violations of UCMJ Articles 107,123a and 134 are considered serious offenses for which a punitive discharge is authorized by a Special or General Courts-Martial. In addition, the Applicant had 4 civil convictions. 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 stated “Due to my ex-wife’s indiscretions, I am unable to receive my VA benefits or use my GI Bill”. For the edification of the Applicant, the Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits 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 sole purpose of enhancing educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

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, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided sufficient 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, Change 9, effective
22 Jul 94 until 02 Oct 96), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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 Articles 107 (false official statements), 123a (Checks, etc., insufficient funds, intent to deceive) and Article 134 (General Article (Indebtedness).

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