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NAVY | DRB | 2006_Navy | ND0600102
Original file (ND0600102.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-AO3, USNR
Docket No. ND06-00102

Applicant’s Request
The application for discharge review was received on 20051012. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable or 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 22 . After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, impropriety in the characterization of the Applicant’s service was discovered by the NDRB. The Board’s vote unanimous that the reason for discharge shall change to: SECRETARIAL AUTHORITY, authority: MILPERSMAN 1910-164, Separation Code “JFF ” and the vote was 4 to 1 that the character of the discharge shall be changed to “HONORABLE. ”




PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated
Applicant’s issues, as stated on the application:

 “My actions at the time were/and are to this day regrettable . I was young , and immature and very impulsive and regret not putting what was really meaningful in my life first which was my military career. Along with being young and making bad decisions I also had a bad marriage. I have always had high thoughts about the military and was very proud to be apart of the armed forces. Since my discharge I have matured a lot and I hope that I can correct some of my bad decisions as a young man, I also want my children to be proud to say their father was in the military. I worked for Delta Airlines as a Load Plan Supervisor for 4 years and I currently work for U.S. Fence for 3 years. I do a lot of volunteer work for the local Red Cross and various local community events such as our Heritage Days and I volunteer with the Parks and Recreation to coach football and basketball. I attend church at community chapel church of GOD in CHRIST. I am also a student at Ashworth College to finish a degree in Business Administration and have a gpa of 3.4. I plan on making my life for me and my family one we can all be proud of after I finish school I would love to join the military again if I can get this changed, I would be more than proud to serve my country once again in this time of need. I apologize for my actions and regret them deeply. Thank you, [signed] C_ P_.”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from N_ D. H_, Jr dtd August 8, 2005
Employment Reference Letter from G_ G_
Employment Reference Letter from J_ G. H_, dtd August 8, 2005
Applicant’s DD Form 214
Service Related Documents (104 pgs)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: None  
         Active: None
Period of Service Under Review :
Date of Enlistment: 19940715             Date of Discharge: 19980717

 Length of Service (years, months, days):

          Active: 0 3 11 23 (Does not exclude lost time.)
          Inactive: 00 00 12

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

Age at Entry: 19

 Years Contracted: 8 (Active 3 years plus 21 month extension)

 Education Level: 12                                 AFQT: 42

 Highest Rate: AO3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.5 (6)              Behavior: 3.5 (6)                 OTA : 3.47 [Provided by Applicant]

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Sea Service Deployment Ribbon (2 nd award), Good Conduct Award, National Defense Service Medal.


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

GENERAL (UNDER HONORABLE CONDITIONS)/ PATTERN OF MISCONDUCT, authority: MILPERSMAN, Article 1910-140 (formerly 3630600).
Chronological Listing of Significant Service Events :

940715:  Pre-service waiver for one non-minor misdemeanor (criminal trespassing) granted.

940726:  Commenced 36 months of active duty under Airman Apprentice Program.

 950321:  Naval Criminal Investigative Service Polygraph Examination Waiver.

 950321:  Naval Criminal Investigative Service Results of Polygraph Examination. After evaluating the charts, it was the opinion of the examiner that x/p___ [ Applicant ] was not being truthful in his responses to the relevant questions.

950325:  Naval Criminal Investigative Service Report of Investigation.
950406:  NJP for violation of UCMJ, Article 121: Larceny, did at the Bachelor Enlisted Quarters, Naval Air Station Jacksonville, on or about 19 January 1995 steal a jacket, of a value of about $100, the property of AMHAN C_.
         Violation of UCMJ, Article 134: Concealment of stolen good, did at the Bachelor Enlisted Quarters, Naval Air Station Jacksonville, on or about 19 January 1995, wrongfully conceal of a value of about $100, the property of AMHAN C_, which property, as he, the said jacket, then knew, had been stolen.
         Award: Forfeiture of $477.20 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.

950501:  Applicant received notified of intended recommendation for discharge with least favorable characterization as other than honorable by reason of misconduct due to a pattern of misconduct as evidenced by all punishments under the UCMJ in your current enlistment.

950510:  Applicant acknowledged that he was being processed for administrative separation for misconduct due to commission of a serious offense. Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.
950615:  An Administrative Discharge Board was held to consider misconduct due to commission of a serious offense and misconduct due to pattern of misconduct. B ased upon a preponderance of the evidence and by vote of 3.0 to 1 found that the Applicant did violate Article 134 and wrongfully conceal the property of AMHAN C_, with a value of about $100.00, property which he knew to have been stolen. By a vote of 2 to 1 the Board recommended retention.
950629:  NJP for violation of UCMJ, Article 86: ( 2 specs),
Specification 1: Did on board NAS Jacksonville, on or about 9 April 1995, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: the 2030 restricted muster at the squadron duty office.
Specification 2: Did on board NAS Jacksonville, on or about 18 April 1995, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: the 0715 restricted muster at the squadron duty office.
          Violation of UCMJ, Article 92: (4 specs),
 Specification 1: Having knowledge of a lawful order issued by Lieutenant T_ A. B_, U.S. Navy, to carry out a restricted muster, an order that it was his duty to obey, did on board NAS Jacksonville, on or about 9 April 1995, fail to obey the same by wrongfully failing to muster at 2030.
 Specification 2: Having knowledge of a lawful order issued by Lieutenant T_ A. B_, U.S. Navy, to carry out a restricted muster, an order that it was his duty to obey, did on board NAS Jacksonville, on or about 18 April 1995, fail to obey the same by wrongfully failing to muster at 1715.
Specification 3: Having knowledge of a lawful order issued by Lieutenant T_ A. B_, U.S. Navy, to only go to places specified in the order, an order that it was his duty to obey, did on board NAS Jacksonville, on or about 19 April 1995, fail to obey the same by wrongfully going to the Enlisted Club “Vital Signs.”
Specification 4: Having knowledge of a lawful order issued by Lieutenant T_ A. B_, U.S. Navy, that prohibited him from consuming alcohol while on restriction, an order that it was his duty to obey, did on board NAS Jacksonville, on or about 19 April 1995, fail to obey the same by wrongfully consuming alcohol at the Enlisted Club “Vital Signs.”
Violation of UCMJ, Article 134: (4 specs), Breaking restrictions.
         Specification 1: Having been restricted to specified muster times by a person authorized to do so, did on board NAS Jacksonville, on or about 9 April 1995, break said restriction.
 Specification 2: Having been restricted to specified muster times by a person authorized to do so, did on board NAS Jacksonville, on or about 18 April 1995, break said restriction.
Specification 3: Having been restricted to specified muster times by a person authorized to do so, did on board NAS Jacksonville, on or about 19 April 1995, break said restriction by going to the enlisted club “Vital Signs.
Specification 4: Having been restricted to specified muster times by a person authorized to do so, did on board NAS Jacksonville, on or about 19 April 1995, break said restriction by drinking alcohol at the enlisted club “Vital Signs.
Award: Correctional Custody for 30 days. No indication of appeal in the record.

950924:  Message from Commanding Officer, Patrol Squadron FIVE to Bure au of Naval Personnel regarding processing of Applicant by for separation by reason of misconduct due to commission of a serious offense. Commanding Officer’s comments: “Member completed four weeks of CCU as directed by CDR R. W. O_ (CO at the time of the mast). Member has been productive, motivated, and initial indication as that his conduct will remain at this improved level. Concur with admin board recommendation.”
951001   Message from Bureau of Naval Personnel requesting copy of Administrative separation package in Applicant's case.
951106   Letter from Patrol Squadron Five to Bureau of Naval Personnel dtd 6 Nov 95 forwarding the administrative separation package.

 951204:  BUPERS message retaining Applicant -- recommended counseling with language "you are being retained in the Naval service, in spite of your Administrative Board of 12 June 1995 which found that you committed misconduct due to commission of a serious offense as evidenced by CO’s NJP for violation of UCMJ Article 134 on 07 April 1995."

970415:  Applicant extended for 21 months.

 UNDATED :         Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under other than honorable conditions) by reason of misconduct due to a pattern of misconduct.

UNDATED:         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.
980713:  Commanding Officer, Patrol Squadron FIVE authorized Applicant’s discharge with a general (other than honorable conditions) by reason of misconduct due to a pattern of misconduct. Commanding Officer’s comments: “Due to a history of misconduct, AO3 P_ (Applicant) has exhibited that he is incompatible with Naval Service. Therefore it is in the best interest of the Navy that AO3 P (Applicant) be released from Naval Service. Date and characterization of service upon separation: General (Other Than Honorable Conditions) Administrative separation on 17 July 1998.”

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 1998071 7 by reason of misconduct due to a pattern of misconduct (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 not proper or equitable (C and D).
The Applicant requested only an upgrade of the characterization of his discharge to honorable or general (under honorable conditions) because he was under the impression that his characterization of service was Under Other Than Honorable Conditions. An administrative error was made in recording the Applicant's character of service. His character of service was listed as general (other than honorable conditions) rather than general (under honorable conditions).

The Applicant contends his disciplinary problems were the result of immaturity, impulsivity, and a bad marriage. The NDRB recognizes that serving in the U.S. Navy is challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. It must be noted that most members of the Navy serve honorably and therefore earn their honorable discharges. In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. Relief on this basis is denied.

The Applicant mentions his post-service actions as a basis for upgrading the character of his discharge. 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. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered. The Applicant provided two employment reference letters and one letter from a coworker as documentation of post-service accomplishments. The Applicant's efforts need to be more encompassing than those provided. For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities. At this time, the Applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in the characterization of discharge. Relief on this basis is denied

The Applicant also mentioned that he would like to return to the military if he can get his DD 214 changed. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces. Reenlistment policy of the Naval service is promulgated by the Commander, Navy Recruiting Command, 5722 Integrity Drive, Bldg 784, Millington, TN 38054. Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment. A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter. Relief on this basis is not warranted.

A lthough not complained of by the Applicant, the B oard determined that he was not properly discharged for a pattern of misconduct . The records show that the Applicant was the subject of two administrative separation proceedings. The separation authority made a decision to retain the Applicant after the first proceeding. At the time, a discharge for pattern of misconduct was proper when a member had at least two nonjudicial punishment proceedings and had violated a retention warning. In the Applicant’s second discharge package, the commanding officer referenced two nonjudical punishment proceedings to support separation. Both nonjudicial punishments referenced had already been part of the earlier administrative separation package and considered by the separation authority when deciding to retain the Applicant. That misconduct could not be used to support a subsequent proceeding unless the Applicant committed new misconduct or there was newly discovered evidence not available during the first processing. The second administrative discharge package provided no new misconduct nor did it mention newly discovered evidence to support processing. Additionally the record contains no evidence that Applicant was given and violated a retention warning after the decision to retain him. Further the Applicant’s performance evaluations for the period in question are positive and make no mention of misconduct. The Applicant was not properly discharged for misconduct due to pattern of misconduct.

Since the Applicant’s separation by reason of pattern of misconduct was determined “improper”, the characterization of service should be “type warranted by the service record.” The Board determined, by a vote of 4 to 1, that relief is warranted based on equity grounds and that the characterization of service should be upgraded to “honorable.” Relief granted.

In cases where no other reason for separation set forth in the Naval Military Personnel Manual is appropriate, but where separation of a member is considered to be in the best interest of the service, the Secretary of the Navy has the authority to direct the separation of any member prior to the expiration of their term of service. The Applicant’s Commanding Officer determined the Applicant had no potential for further naval service. The basis for his determination is clearly documented in the service record. There is no other narrative reason for separation which accurately describes the reason the Applicant was separated. Therefore, the NDRB determined that the reason for the Applicant’s discharge shall change to Secretarial Authority. Relief granted.


Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 1997 until 21 Aug 2002, Article 1910-140 (formerly 3630600), SEPARATION 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, Article 121 Larceny.

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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