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NAVY | DRB | 2006_Navy | ND0600187
Original file (ND0600187.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. ND06-00187

Applicant’s Request
The application for discharge review was received on 20051108. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing discharge review before the Board in the Washington, D.C. Metropolitan area. The Applicant did not designate a representative on the DD Form 293.

 Decision

A personal appearance hearing discharge review was conducted in Washington, D.C. on 20061004 . 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 4 to 1 that the character of the discharge shall not change. The discharge shall remain Under Honorable Conditions (General) 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:

“Wasn’t given a fair opportunity at hearing. Was let out of service due to the fact: couldn’t fit through a deck hatch. I did my duties and worked hard on my assignment ships. I must correct what hasn’t been for so long. Although passing & graduating boot camp . I entered the fleet at 270. I was as a power lifter , was a very large man. At my captains mess: it was determined after a full physical and being observed by master chief of the ship, co, ex, and chief medial officer that I could not fit through a close hatch with the wheel opening. I was told it was because of these reasons I was let out.”
Applicant’s Remarks: (Taken from the DD Form 293) “Since being a civilian I’ve worked primarily in the security industry. I’ve worked hand and hand with local, state law enforcement in the apprehending of criminals. I also was instrumental and the apprehension of a bank robber. See attached letter.

Thank You
M_C_”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Thank You letter from J_ S_, dtd July 31, 2000
 Applicant letter dtd September 20, 2006
 Character reference letter from T_ G_, Security manager David Yurman I nc. , dtd, September 20, 2006
 Character reference letter from Officer B_ T_, dtd September 20, 2006
Character reference letter from Y_ R_, dtd September 20, 2006
Character reference letter from J_ M_, September 20, 2006
Applicant memo with attached Certificate of Disposition from Criminal Court of the City of New York (Kings County), dtd July 6, 2000 and letter from D_ T_ , Probation supervisor, Oneida County Probation Department , Utica New York, dtd May 23, 1995 (4 pages)
Applicant memo with attached criminal record check from Criminal Check USA dtd September 25, 2006, copy of Applicant’s New York State Department of State Licensing Services Security Guard license exp. 06/08/08 , NYC Fire Guard License exp 2/1/2009 , and NYC Auxiliary Police Officer Identification exp. 2/2008 (6 pages)
Applicant memo with attached email from Applicant to J_ N_, dtd August 24, 2006 (2 pages)
Applicant 2005 W-2 Form
2005 W-2 Form for Y_ R_ (Applicant fiancée)
Applicant Certificate of Accomplishment for Auxiliary Police Basic Training Course #05MN13, dtd February 1 st 2006
Character reference letter from J_ S_, Branch manager Astoria Federal Savings, dtd July 31, 2000
Applicant State of New York Certificate of Completion for Municipal Police Training Council, dtd February 1 st 2006

F or the record, the Applicant on DD form 293 dtd 20031101, stated (3) letters of character and (1) letter of acknowledgement from a bank manager would be provided as supporting documentation. The NDRB received only the letter of acknowledgement.

 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: 19890523             Date of Discharge: 19910506

 Length of Service (years, months, days):

          Active: 01 11 14 (Does not exclude lost time.)
          Inactive: 00 00 09

 Time Lost During This Period (days):
         Unauthorized absence: 95 days
         Confinement:              none

 Age at Entry: 20

 Years Contracted: 8

Education Level: 11(GED)                                    AFQT: 51

 Highest Rate: SR

 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): National Defense Service Medal.
* Not Available


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

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

890523:  Applicant counseled on Navy’s physical readiness program as set forth in OPNAV Instruction 6110.1C.

890601:  Commenced active duty for a period of 36 months.

890801:  Recruit Training Command, Great Lakes Illinois advised Applicant that he did not currently meet effective physical fitness standards.
900221:  Applicant to unauthorized absence at 0715 on 900221.

900305:  Applicant missed ship’s movement.

900313:  Applicant surrendered to military jurisdiction.

900416:  Applicant returned on board USS AUSTIN.
900521:  Applicant to unauthorized absence at 0615 on 900521 .

900523:  Applicant issued Technical Arrest Orders (TAO), ordered to report NLT 2200 900523.
900531:  NJP for violation of UCMJ, Article 86: Unauthorized absence.
 Violation of UCMJ, Article 92: Failure to obey order or regulation.
Violation of UCMJ, Article 115: Malingering.
         Award: Correctional Custody for 30 days, forfeiture of ½ pay per month for 2 months (suspended for 6 months). No indication of appeal in the record.

900531:  Retention Warning: Advised of deficiency (Unauthorized absence, failure to obey order or regulation and malingering as evidenced by your Commanding Officer’s non-judicial punishment of May 31, 1990.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
900604:  Applicant to unauthorized absence from 0600, 900604.

900607:  Applicant missed ship’s movement.

900705:  Report of Declaration of Deserter. Applicant declared a deserter on 900704 having been an unauthorized absentee since 0600, 900604 from USS AUSTIN.

900816:  Report of Return of Deserter. Applicant apprehended by [military authorities on 900816 (0240) at Griffiss, AFB, Rome, NY. Returned to military control 900816 (0240).
900816:  Applicant returned to USS AUSTIN.

910124:  NJP for violation of UCMJ, Article 86: Unauthorized absence from unit 0100, 901228 to 1530, 901228.
         Violation of UCMJ, Article 87: Missing ship’s movement, 0800, 901228.
 Violation of UCMJ, Article 92: Dereliction of duties, 910122.
         Award: Forfeiture of $377.00 pay per month for 1 month, restriction and extra duty for 30 days. No indication of appeal in the record.

910201:  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 as evidenced by service record entries.

910214:  Applicant advised of rights and having consulted with counsel, elected to obtain copies of documents supporting the basis of the recommended separation, submit statements on his behalf, appear before an Administrative Discharge Board, and have qualified counsel representation at the Administrative Board.
910318:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to commission of a serious offense, that such misconduct warranted separation, and recommended discharge with a under honorable conditions (general).
910318:  Commanding Officer, Transient Personnel Unit, Norfolk recommended discharge with a under honorable conditions (general) by reason of misconduct due to commission of a serious offense. Commanding Officer’s comments: “Concur with the findings and recommendations of the Board.”

910404:  CNMPC directed the Applicant's discharge with a under honorable conditions (general) by reason of misconduct commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19910506 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 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 Applicant requests an upgrade to his discharge characterization to honorable. When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. A general 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. The Applicant’s service was marred by 1 retention warning, 2 nonjudicial punishment proceedings for violations of Article 86 (2 specs), Article 87, Article 92 (2 specs), and Article 115 of the UCMJ. Violations of Article 86, 87, 92, and 115 are considered serious offenses and a punitive discharge is authorized if adjudged at a special or general court-martial. 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. Contrary to the Applicant’s assertions, there is no evidence in the record, nor did the Applicant submit any evidence that he was separated because he “couldn’t fit through a deck hatch” or that he was denied a fair hearing. Relief is not warranted.

The Applicant requests an upgrade to his characterization of discharge based on post service equity. The Applicant states “Since being a civilian I’ve worked primarily in the security industry. I’ve worked hand and hand with local, state law enforcement in the apprehending of criminals.” For the edification of the Applicant, 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 the service. The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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. After a complete review of the entire record, including the evidence submitted by the Applicant, the Board was impressed and found commendable the Applicant’s community service, specifically his volunteer work with the NYC Police Department as an auxiliary officer. The Board however, determined that the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct which precipitated the discharge. Relief denied.



The following is provided for the edification of the Applicant. The Applicant has exhausted his opportunities for review by the NDRB. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

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 86 ( absent without leave) Article 87 (missing movement), Article 92 (failure to obey an order) and Article 115 (malingering).

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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