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NAVY | DRB | 2006_Navy | ND0600034
Original file (ND0600034.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-MA3, USN
Docket No. ND06-00034

Applicant’s Request
The application for discharge review was received on 20051004. The Applicant requests the Narrative Reason for Separation be changed. The Applicant requests a personal appearance hearing before the Board in the Washington DC area. The Applicant did not designate a representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060717. 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 General (Under 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 was discharged without the opportunity of a formal ‘Captains Mast.’ My former command separated me because of a bogus charge that was not proven. This charge came just two months after I accused the command of racial discrimination. My LPO (who was also African American) warned me not to take such an action, because it could cause problems with my career. So, I told him that I (at that time) would not file the complaint. In-turn, he informed me that he had to inform the command of my complaint anyway. Two months later, after going to ‘DRB’, (who had already found me guilty) I was told that they were sending me home. At the time, I was placed on limited light duty because of injuries suffered during police training. They sent me home without even allowing me to heel properly. I believe if I had the chance to go before the ‘Captain’, I would still be in the military. Being a fleet returnee and having an outstanding record, I shouldn’t have been thrown out. The funny thing about the whole thing is that they tossed me out quickly, because they found out that I made E-5. In conclusion, my narrative reason for separation (misconduct) improper because I was denied a Captain’s Mast.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (2)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19910522 – 19910604               COG
         Active: USN                        19910605 – 19940629               HON
         Inactive: USNR-R                  19940629 – 19990521               HON
 Inactive: USNR-R                  19991028 – 20020404               UNKNOWN
Inactive: USNR (DEP)     20020405 – 20020408               COG
Period of Service Under Review :
Date of Enlistment: 20020409             Date of Discharge: 20040429

 Length of Service (years, months, days):

         Active: 02 00 21
         Inactive: None

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

 Age at Entry: 38

Years Contracted: 4 (4 month extension)

 Education Level: 12                                 AFQT: 40

 Highest Rate: MA3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.5 (2)              Behavior: 3.5 (2)                 OTA: 3 .50

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Navy Expeditionary Medal, National Defense Service Medal (2), Sea Service Deployment Ribbon, Navy Artic Service Ribbon, Navy Rifle Expert Medal, Navy Pistol Sharpshooter Ribbon, Enlisted Submarine Breast Insignia.


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

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

 Chronological Listing of Significant Service Events :

020409:  Reenlisted this date for a term of 4 years.
040412:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct commission of serious offense.

040413:  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.
040414:  Commanding Officer, Naval Submarine Base New London approved Applicant’s discharge with a general (under honorable conditions) by reason of misconduct commission of a serious offense.
         Summary of Military Offenses:
 Violation of UCMJ, Article 92: During January 2004 through February 2004, violated a lawful general regulation, to wit: Joint Ethics Regulations, DOD Directive 5500.7-R, dated 30 August 1993, by using his military badge for other than an official purpose.
         Violation of UCMJ, Article 134: January 2004 through February 2004, wrongfully misused his position as a Naval Submarine Base New London Police Officer by stating he was a Naval Submarine Base New London Police Officer and showing his military badge to the proprietor of the Golden Gate Restaurant in the Town of Groton, Connecticut, and was prejudice of good order and discipline in the armed forces.
         Violation of UCMJ, Article 134: January 2004 through February 2004, wrongfully misused his position as a Naval Submarine Base New London Police Officer by stating he was a Naval Submarine Base New London Police Officer and showing his military badge to the proprietor of the Golden Gate Restaurant in the Town of Groton, Connecticut, which was of a nature to bring discredit upon the armed forces.
         Violation of UCMJ, Article 107: On 15 March 2004, with intent to deceive, make to Investigative V_ an official statement, to wit: “I did not show my military badge to the proprietor or bouncer of the Golden Gate Restaurant in the Town of Groton, Connecticut,” or words to that effect, which statement was totally false, and was then known by the said MA3 B_ to be so false.
         Commanding Officer’s comments: “As evidenced by his actions MA3 B_ (Applicant) has exhibited little regard for military authority. His conduct cannot be tolerated and is detrimental to the good order and discipline of the Navy. MA3 B_ (Applicant) possesses no potential for further naval service. Accordingly, I approve the separation of MA3 B_ (Applicant), with the characterization of service to be General (Under Honorable Conditions).”

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20040429 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of general (under 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 implies that his discharge was improper because he was denied Captain’s Mast. In reviewing the Applicant’s records, the Board found that the Applicant was discharged for violation of UCMJ Article 92 (Failure to obey regulation), Article 107 (False official statement) and 2 specifications of Article 134 (Wrongful misuse of position). Violation of Articles 92 and 107 are serious offenses for which a punitive discharge is authorized under Appendix 12 of the Manual for Courts-Martial (B). The Applicant is advised that commission of a serious offense does not require adjudication by non-judicial or judicial proceedings. Whenever a Sailor is involved in misconduct due to commission of a serious offense, commanders shall process the Sailor for separation, and normally, the characterization of service shall be under other than honorable conditions. The Board determined that the Applicant’s discharge was proper and equitable. Relief on this basis is denied.

The Applicant requests a Narrative Reason for Separation change. Under its responsibility to examine the propriety and equity of the Applicant's discharge, the NDRB will change the reason for discharge if such a change is warranted. The summary of service clearly documents that misconduct due commission of a serious offense was the reason the Applicant was discharged. No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. Therefore changing the Narrative Reason for Separation would be inappropriate. Relief on this basis is 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 post-service accomplishments or any other evidence related to the 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), re-issued October 2002, effective 22 Aug 02 until 25 April 2005, 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 92 Failure to obey regulation and Article 107 False official statement.

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 20374-5023I

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