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NAVY | DRB | 2006_Navy | ND0600160
Original file (ND0600160.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-SR, USN
Docket No. ND06-00160

Applicant’s Request
The application for discharge review was received on 20051101. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to uncharacterized and the Narrative Reason for Separation be changed to “Entry Level Separation.” The Applicant requests a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area. Subsequent to the application, the Applicant designated American Legion as the representative.

 Decision

A personal appearance hearing discharge review was conducted in Washington, D.C. on 20060925 . 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 3 to 2 that the character of the discharge and unanimous that the reason for 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
The Applicant and his Representative submitted the following issue, which supersedes all prior issues submitted to the Board:
“ Propriety Issue: This Applicant contains that the JAG attorney failed to adequately inform him on the potential criminality associated with refusing to train, for this reason, this Applicant is requesting that his discharge be upgraded to Uncharacterized and the narrative reasoning be changed to Entry Level Separation.

Equity Issue: Pursuant to 10 USC 874 (b) (UCMJ, Article 74) and in accordance with SECNAVINST 5420.174D, Part IV, Paragraph 403 m (7), we request, on behalf of this former member, the Board’s clemency relief with an up-grade of his characterization of service on the basis of his post-service conduct.
In accordance with Title 32, CFR, section 724.116 and SECNAVINST 5420.175D, Part I, Paragraph 1.20, the American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issues.

 Essentially, a s noted on the DD Form 293, this Applicant is requesting that his discharge be upgraded because the discharge does not represent his true character. He has submitted 22 pages of additional documentation attesting to his post-service activities for consideration. The Applicant states that an upgrade is warranted, as his demonstrated character is incompatible with his discharge.
In 1990, this Applicant entered the US Navy with the goal of bec oming a Nuclear Electronic Tech nician. He adapted well to training and was appointed Recruit Chief Petty Officer. The SR shows that the Applicant earned no awards. The SR shows that the Applicant was awarded Summary Court Martial on 900831 for VUCMJ Article 90 (2 specs). After serving for 4 months and 17 days, this Applicant was Under Other Than Honorable Conditions discharged and separated for misconduct-commission of a serious offense authorized by MILPERSMAN 3630600.
After service, he entered college. He has completed his associate’s degree in Criminal Justice Associates. He marries a US Army soldier in 1993. He has one boy, age 11 and one girl age 9. This Applicant worked for Kenwood Electronics, Military Sales Division from 1994-2000, where he rose to Regional Sales Manager. In 2000, he entered the Missouri Western State College, Regional Law Enforcement Academy, where he ranked 2 nd in his class. In 2004, this Applicant ran for Sheriff, Clinton County. Since May 2005, he has worked for Uni Guard, a private security company.

The American Legion’s express purpose in providing this statement, and any other submittals or opinions of record, is to aid the applicant in resolving any improprieties or inequities in the character and basis for discharge. Moreover, we rest assured that the Naval Discharge Review Board’s final decision will reflect sound equitable pri n ciples consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553, and set forth in 32 C.F.R., part 724; SECNAVINST 5420.174C, enclosure (1).”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Copy 4)
Copy of Fingerprints/Record Check from Missouri State Highway Patrol, March 31, 2001
Criminal History Record Check from State of Hawaii, dtd February 03, 2000
 NCIC Re port from Missouri State Highway Patrol, dtd May 07, 2001
Ltr of reference from Missouri Federation of Police Chiefs, W_ E. L_, dtd June 26, 2004
Ltr of reference from Chief G_ H_, Plattsburg Police Department, dtd November 6, 2004
Ltr of reference from G_ M_, Clinton County Office of the Sheriff, dtd November 4, 2004
Reference Evaluation from D_ C_, dtd January 16, 2000
Reference Evaluation from T_ M_, dtd January 18, 2000
Certificate of Completion for Law Enforcement Academy from Missouri Western State College, dtd June 2, 2000
Certificate of Completion for Field Training Officer School from Missouri State Highway Patrol, dtd July 31, 2003
Class A Police Certification from State of Missouri Department of Public Safety, dtd June 9, 2000
Certificate of Appreciation from Bible Baptist Church of Cameron, dtd October 24, 2004
Credentials of Ministry from Universal Life Church, dtd December 23, 2004
Memo of Commendation from Chief G_ H_, Plattsburg Police Department, dtd July 1, 2003
Lifesaving Award from Plattsburg Police Department, dtd February 17, 2004
Memo of Promotion from Chief G_ H_, dtd July 8, 2003
College Transcripts from the Metropolitan Community College, dtd October 26, 2005 (4 pages)
Certificate of Completion, dtd May 10, 2002
Certificate of Instruction for Baton Basic Trainers Course, dtd September 17, 2002
Certificate of Training for Rave/Club Drugs Awareness, dtd December 9, 2002
Certificate of Training for LECC Training Seminar, dtd August 29, 2003

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19890815 – 19900612               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19900613             Date of Discharge: 19901029

 Length of Service (years, months, days):

         Active: 00 04 17 (Does not include lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              24 days

 Age at Entry: 17 (Parental Consent)

Years Contracted: 4 (24 months extension)

 Education Level: 12                                 AFQT: 97

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NA*                  Behavior: NA*             OTA:     NA*

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): None
* Not Available


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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - commission of a serious offense, authority: MILPERSMAN, Article 3630600.
Chronological Listing of Significant Service Events :

900830:  Charges referred to summary court-martial.

900831:  Summary Court-Martial.
         Charge: violation of the UCMJ, Article 90 (2 specs): Disobeying a lawful order from a superior commissioned officer.
         Specification 1: In that Seaman B_ R. K_, (Applicant), U. S. Navy, Recruit Training Command Orlando, Florida, on active duty, having received a lawful order from Lieutenant H_ L. C_, U. S. Navy, his superior commissioned officer, then known by the said Seaman B_ R. K_, U. S. Navy, to be his superior commissioned Officer, to return to training, or words to that effect, did, at Recruit Training Command, Orlando, Florida, on or about 22 August 1990, willfully disobey the same by refusing to return to training.
         Specification 2: In that Seaman B_ R. K_, (Applicant), U. S. Navy, Recruit Training Command Orlando, Florida, on active duty, having received a lawful order from Commander E_ J. R_, U. S. Navy, Executive Officer, Recruit Training Command, Orlando, Florida, his superior commissioned officer, then known by the said Seaman B_ R. K_, U. S. Navy, to be his superior commissioned officer, to return to training, or words to that effect, did, at Recruit Training Command, Orlando, Florida, on or about 29 August 1990, willfully disobey the same by refusing to return to training.
          Finding: to Charge and the specifications thereunder, guilty.
          Sentence: Forfeiture of $556.00 pay per month for 1 month, reduced to E-1, confinement for 30 days.
         CA action 900904: Sentence approved and ordered executed.
        
900831:  Applicant to confinement.

900919:  Staff Judge Advocate Review of Summary Court Martial: The sentence was legal. There were no allegations of error raised by the accused.

900924:  Applicant from confinement (24 days lost).

901004:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to commission of a serious offense.
901004:  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.
         Applicant did not object to this discharge.
901010:  Commanding Officer, Recruit Training Command, recommended to Commander, Naval Military Personnel Command (NMPC 8322) that the Applicant be discharged under other than honorable conditions by reason of misconduct due to commission of a serious offense. Commanding Officer’s comments: “SR K_ (Applicant) received a Summary Court-Martial for the charge listed above. SR K_ (Applicant) has shown total disregard for the Navy’s good order and discipline thus showing no potential for future military service.”

901022:  CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to serious offense.

901029:          DD Form 214: Applicant discharged.

050214:  NDRB documentary record review Docket Number ND05-00293 conducted. Determination: Discharge proper as issued. No change is warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19901029 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 Applicant requests a character of service change to Uncharacterized. The Applicant was notified of the command’s intent to separate him within the first 180 days of his enlistment. At that time, the Applicant was eligible for an Uncharacterized or Entry Level Separation. However, because of the Applicant’s misconduct during this period, his command properly notified, processed, and discharged him in accordance with MILPERSMAN 3630600. Since the Applicant was discharged Under Other Than Honorable Conditions, he is not now eligible for an Uncharacterized discharge. Applicable regulations stipulate that a request for review from an Applicant who does not have an Honorable discharge shall be treated as a request for a change to an Honorable discharge.

The Applicant contends that his discharge is improper because a “JAG attorney failed to adequately inform him on the potential criminality associated with refusing to train.” Besides that Applicant’s sworn testimony, t here is no evidence in the record, nor has the Applicant produced any evidence, to support the contention of command misconduct. In the absence of incriminating evidence, the Board concluded that the government’s agents acted in good faith, proceeded within the bounds of the law, and conformed their behavior to appropriate standards during the Applicant’s service and subsequent administrative processing. The Board advises the Applicant that he bears the burden of establishing his issues through the presentation of substantial and credible evidence. The Applicant’s statements alone do not provide sufficient basis to grant relief. Relief denied.

The Applicant requests a Narrative Reason for Separation change to “Entry Level Separation.” 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. By regulation, members notified of intended recommendation for discharge within the first 180 days of enlistment are eligible for an uncharacterized or entry-level separation characterization of service. Unless there were unusual circumstances regarding a service member’s performance or conduct that would merit another characterization, an uncharacterized discharge is generally considered the most appropriate characterization of a member’s service. The Applicant's service record is marred by a Summary Court-Martial conviction on 19900831 for violation of two specifications of UCMJ, Article 90 Willfully disobeying lawful order of superior commissioned officer. These are serious offenses for which a punitive discharge is authorized. The summary of service clearly documents that misconduct due to 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 to “Entry Level Separation” would be inappropriate. Relief on this basis is denied.

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 military 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 could be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. The Board received and considered all of the Applicant’s submissions, including his unofficial transcripts ; certificates of completion , training, and commendation from the law enforcement field from 2000 to 2004; criminal history records check from 2000 and 2001 ; reference evaluations from 2000 ; and letters of reference from 2004 . During the personal appearance hearing proceedings , the Applicant informed the panel that he completed an associates degree in Criminal Justice; is employed as a Security Manager with UniGuard ; is married and has two children ; volunteers as firefighter and reserve officer; is an active member of numerous associations; and had no police involvement since the last record check in 2001 . After careful consideration, the Board concluded the Applicant’s post-service achievements have been insufficient to mitigate the misconduct while in the service. Relief denied.

The following is provided for the edification of the Applicant. The Applicant has exhausted opportunities for review at the NDRB. If further review is desired, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of service.
Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560A), Change 8, effective
21 Aug 89 until 14 Aug 91, 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 90 Willfully disobeying lawful order of superior commissioned officer.

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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