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


FOR OFFICIAL USE ONLY


ex-YN3, USN
Docket No. ND06-00083

Applicant’s Request

The application for discharge review was received on 20051014. 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 20060802. 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 in lieu of a trial by court-martial .

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PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on an attached document/letter:

“I am writing this letter to ask you to review and hopefully upgrade my discharge from the United States Navy from an Other than Honorable to a General under Honorable conditions. It has been three years since my discharge and since that time I have held a steady job, purchased a home and settled down, and am preparing to start a family. I have also enrolled into the Law Enforcement Academy here at Southeast Missouri State University. How ever my application is being held up because of my discharge. This is why I a writing this letter to your board in hopes to have you review my case and up-grade my discharge and RE code.

The nature of my discharge was separation in lieu of trial, and in accordance with the MILPERS manual and the JAG manual it is an automatic Other Than Honorable discharge as you know.

In April and May of 2002 I was attached to the USS TOLEDO (SSN 769) a fast attack submarine stationed in Groton Connecticut. The ship was on deployment and I was left behind to go to school and to work as a liaison between the ship and the support unit. The funding for my school was cancelled and I was then sent to work for the Commander Submarine Squadron 22 in La Maddelena Italy to wait for the ships arrival. While still in Connecticut I had a scheduled leave period that I took. When I returned from leave to the squadron support unit I signed myself in off leave and denoted it as the CDO’s signature. a common practice as a yeoman on a submarine, we would sign our selves in and out of leave all the time. I understand that it is not the correct procedure, but like I said it was the common practice. The LPO at the support unit was my old LPO from the ship. We never got along on the ship the entire two years that we served together. He took my leave chit to the previous nights CDO to verify my return, which the CPO told him that I had not checked in and that was not his signature. When I confronted the Department Chief about it, I was instructed to not worry about it “you know M_ hates you shipmate I will take care of this, you should have called me at home, I talked to you earlier that day I knew you were in the area I would have signed you in this morning, don’t worry about it”. So I did just that I did not worry about it. Well later that day I want to the airport and caught my flight to Italy. The entire time that I was TAD to the Support Unit and while I was TAD in Italy I was using my Government issued travel card. YN1(SS) M_ my old LPO from the ship was the LPO of YN2(SS) S_ who was the administrator for the government travel card program. YN1 had YN2 “look” into my account to see if there had been any “activity”. There had, charges for gas food and CBQ rooms. I was TAD at the time is that not what the card was for? So then YN1 brought me up on charges of UA for the leave chit, article 92 failure to obey an order for using my travel card, enclosed you will find the travel card “agreement” I fail to see that this is a direct order. Article 80 attempts, in that I attempted to use my card, there was no attempt I did in fact use my card, and article 121 Larceny and wrongful appropriation. There was no real larceny or wrongful appropriation as I did not use government property or funds. I also had already paid my balance in full when this all began.

The support unit used the CDO from the night that I was supposedly UA to do the investigation while I was in Italy and then forwarded the package to the ship there. Where they took me to mast and found me to be guilty of all charges, and sentenced me to reduction in rank, 60 days restriction and $500 for two months. The punishment I felt was harsh for the crime. I consulted LT T_ T_ for the Navy Legal Service Office who also felt that this was harsh, and that there was a conflict of interest with the supposed UA night’s CDO performing the investigation and advised me to appeal, which I did. The appealing authority when they received my package sent a personal message to my CO advising him that they intended to grant my appeal (see attacked appeal package) but wanted to give him the chance to set aside the NJP and re-investigate with a different investigating officer and different more appropriate charges, so that the punishment would work. The CO did just that and they held NJP again, with the same punishment awarded. My legal council felt that the command was singling me out and that they were upset because of my appeal and that I would not get a fair “hearing” at NJP. We asked for a Courts Martial so that we could ask for a separation in lieu of trial. We both knew that they would accept this even though they were determined to punish me. I look back now three years later and under stand that what I did was wrong and I could have saved a lot of time and energy and headaches and possibly my naval career had I just done what I knew was the right thing and not done “what we have always done”. I truly regret the choices that I made and I feel that I have paid the price by leaving the armed forces with an other than honorable discharge for stupid mistakes and choices. I do however feel that I have been a productive member of society and would like to get on with my life and on with the career choices that I have made, but I cannot do that with out your help and with out you upgrading my discharge and RE code. Thank you for your time and consideration. If you have any questions please feel free to contact me.

Sincerely,

J_ D D_(Applicant) ”

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214
Five pages from Applicant’s service record
Employment verification from S_ S_, undated

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PART II - SUMMARY OF SERVICE

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

         Inactive: USNR (DEP)     19990512 - 19990524      COG
         Active: None

Period of Service Under Review :

Date of Enlistment: 19990525             Date of Discharge: 20020725

Length of Service (years, months, days):

         Active: 03 02 01
         Inactive: None

Time Lost During This Period (days):

         Unauthorized absence: None
         Confinement:              None

Age at Entry: 19

Years Contracted: 4 (12 month extension)

Education Level: 12                                 AFQT: 73

Highest Rate: YN3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: 2.8 (4)                       Behavior: 1.8 (5)                 OTA: 2.26

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

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

UNDER OTHER THAN HONORABLE CONDITIONS/ IN LIEU OF TRIAL BY COURT MARTIAL, authority: MILPERSMAN, Article 1910-106 (formerly 3630650) .

Chronological Listing of Significant Service Events :

990512:  Pre-service waiver for non-minor misdemeanor granted.

000314:  Applicant evaluated by Clinical Psychologist, Mental Health Unit, Naval Ambulatory Care Center Groton, CT.
         Diagnostic Impressions:
         AXIS I:
Adjustment Disorder with Mixed anxiety and depressed mood.
         Occupational Problem
         AXIS II: deferred
         Plan: “(Applicant) is fit for duty and responsible for his actions. While (Applicant’s) distress is genuine, he does not suffer from a major psychiatric disorder that would preclude him from submarine duty.”
        
011013:  NJP for violation of UCMJ, Articles 80 (Attempts), and 121 (Larceny and wrongful appropriation).
         Award: Restriction and extra duty for 30 days (suspended six months) and forfeiture of $200.00 per month for two months (suspended two months). [Extracted from NAVPERS 1626/7 (Report and disposition of offenses) dated 020614.]

011024:  NJP for violation of UCMJ. [Extracted from NAVPERS 1070/604]

020501:  Medical Evaluation, Medical Department, Submarine Squadron 22.
         “...Member was diagnosed with adjustment disorder with depressed mood. Patient was returned to submarine by UMO in GROTON with note that state PQ underway. Currently member denies problems. Patient PQ submarine duty.”

020514:  NJP for violation of UCMJ, Articles 80, 86, 92 and 121.
         Award: Forfeiture of $500 per month for 2 months, restriction for 60 days, reduction to E-3. No indication of appeal in the record. Undated appeal provided by Applicant. [Extracted from Evaluation Record and Counseling Report for period ending 020614]

020517:  Commanding Officer, USS TOLEDO, informed Commanding Officer, COMSUBGRU EIGHT, that he intends to set aside the Applicant’s NJP and have the Applicant’s conduct regarding use of his Government credit card reinvestigated. [Document provided by Applicant]

020617:  Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 86:
Specification: In that Yeoman Third Class (Submarine) J_ D D_(Applicant), U.S. Navy, Submarine Squadron Support Unit, New London, on active duty, did, on or about 24 March 2002, without authority absent himself from his organization to wit: Submarine Squadron Support Unit, New London located at Naval Submarine Base, New London, Groton, Connecticut and did remain so absent until on or about 25 March 2002.
Charge II: Violation of UCMJ, Article 92:
Specification 1: In that Yeoman Third Class (Submarine) J_ D. D_(Applicant), U.S. Navy, USS TOLEDO, on active duty, who knew or should have known of his duties on board Submarine Squadron Support Unit, New London on or about 24 March 2002 was derelict in the performance of those duties in that he willfully failed to obtain a true signature of the Command Duty Officer on his leave papers as it was his duty to do.
Specification 2: In that Yeoman Third Class (Submarine) J_ D. D_(Applicant), U.S. Navy Submarine Squadron Support Unit, New London, on active duty, violate a lawful order issued by the Commanding Officer, Submarine Squadron Support Unit, to wit “Statement of Understanding Government Travel Card Program” signed at his application for a government travel card, an order which it was his duty to obey, did in or around Connecticut, Rhode Island, Missouri, Virginia and New Jersey, on divers occasions between on or about 8 January thru 11 April 2002 failed to obey the same by wrongfully making personal charges on his government travel card.

020617:  Charges referred to special court-martial.

020624:  Applicant requested an administrative discharge in lieu of a trial by court-martial. He consulted with counsel and admitted he was guilty of all the charges preferred against him. Specifically, he admitted to violating UCMJ, Articles 86 and 92 . The Applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veterans' benefits based upon his current enlistment, and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing.

020702:  Commanding Officer, Submarine Squadron Support Unit, New London, forwarded Applicant’s request and recommended approval of discharge under other than honorable conditions in lieu of a trial by court-martial.

020711:  The Commander, Submarine Group Two, exercising GCMCA, approved the request for administrative separation in lieu of a trial by court-martial, and directed Applicant’s discharge.

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PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020725 in lieu of a trial by court-martial (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).

An under other than honorable 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. In a signed statement, the Applicant requested an administrative discharge in lieu of trial by court-martial with the understanding that it could be under other than honorable conditions. He consulted with counsel and was fully advised of the implications of his request. The Applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veterans' benefits based upon his current enlistment, and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing. The Applicant stated he understood the elements of the offenses with which he was charged. He admitted he was guilty of violating Article 86, unauthorized absence on or about 24 March 2002 until on or about 25 March 2002 and Article 92, failure to obey an order/regulation on divers occasions from 8 January 2002 until 11 April 2002. In addition to the charges which prompted the Applicant’s request for separation in lieu of trial, the Applicant was awarded nonjudicial punishment on 20011024 for violations of the UCMJ. 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 contends that he realizes that what he did was wrong, but contends that he has been “a productive member of society” since discharge. 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. The Applicant provided employment verification for the Board’s consideration. Examples of additional documentation that should be provided to the Board include proof of educational pursuits, documentation of community service 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. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. 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), Change 29, effective
11 Jul 2000 until 21 Aug 2002, Article 1910-106 (formerly 3630650), SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

B. A punitive bad conduct discharge may be adjudged for violation of the Uniform Code of Military Justice, Article 92, failure to obey a lawful order.

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 .

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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