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NAVY | DRB | 2006_Navy | ND0600409
Original file (ND0600409.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-ATAA, USN
Docket No. ND06-00409

Applicant’s Request
The application for discharge review was received on 20060119 . The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and the Narrative Reason for Separation be changed to “ HONORABLE .” 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 20061108 . 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 issue s, as stated on the application :

“ I am requesting an upgrade so I will have a better chance at getting employment. I would say that 99% of the jobs I have applied for have been rejected because of my discharge. The justification for my request is that I went into (132) did not give suffenct time to overcome a prior captions mass. I was still recovering from having to give $800 a month to my ex-wife that was ordered by LT J_ P_ of VAQ 129. I was also paying $549 a month in child support, $500 car payment that my ex-wife left me, and $525 dollars a month in housing expense. I was on my way to having my debt situation fixed and I honestly believe that I would have been a productive member of VAQ 132 and of the United States Armed Forces. I had a good career started in the Navy and that’s what I wanted. I never have been in trouble with anybody, and I certainly did not want to part ways with the United States Navy the way I did .”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
 Mississippi High School Equivalency Diploma, dtd October 11, 2001
Applicant’s Resume
EA6B PROWLER Plane Captain Designation, dtd July 23, 2003
Evaluation Report and Counseling Record (5 pages)
 Certificate of Completion, Telecommunications Technology, dtd May 30, 2004
 Leave and Earning Statement, dtd April 2005
Letter of Appreciation, dtd October 17, 2001
Enlisted Aviation Warfare Specialist designation, dtd October 6, 2004
Picture of Applicant

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     2001 0809 - 20011028       COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 20011029              Date of Discharge: 20050517

Length of Service (years, months, days):

          Active: 0 3 0 6 2 0 (Does not exclude lost time.)
         Inactive: None

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

Age at Entry: 18

Years Contracted: 4 ( 12 -month extension)

Education Level: 1 1 (GED)                                    AFQT: 65

Highest Rate: AT 3

Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.4 ( 7 )     Behavior: 2.6 ( 7 )        OTA: 3.12

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Good Conduct Medal, National Defense Service Medal, Global War on Terrorism Service Medal, Enlisted Aviation Warfare Specialist.


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

GENERAL (UNDER HONORABLE CONDITIONS) /MISCONDUCT (SERIOUS OFFENSE), authority: MILPERSMAN, Article 1910-142 (formerly 3630605).
Chronological Listing of Significant Service Events :

050112 :  NJP for violation of UCMJ, Article 123a : Making, drawing, or uttering check, draft, or order without sufficient funds .
 Violation of UCMJ, Article 134 : Adultery .
          Award: Forfeiture of ½ month pay per month for 2 months (suspended for 6 months) , restriction and extra duty for 45 days, reduction to E- 3 . No indication of appeal in the record.
050427:  Letter of Instruction for Financial Responsibility: Issued to address Applicant’s financial responsibilities.

050505:  Disciplinary Review Board recommended Applicant’s administrative separation

 050509 :  NJP for violation of UCMJ, Article 134 : In that Aviation Electronics Technician Airman B_ A. H_, U.S. Navy, on active duty, being indebted to Homes for Rent in the sum of $785 for rent and legal fees, which amount became due and payable on or about 050501, did, from 050401 to 050501, dishonorably fail to pay said debt .
          Award: Forfeiture of ½ month pay per month for 2 months (suspended for 6 months) , restriction and extra duty for 45 days (suspended for 6 months) , reduction to E- 2 . No indication of appeal in the record.
050509 :  Forfeiture of pay awarded at NJP on 050112 vacated due to continued misconduct.
050509 :  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct due to commission of a serious offense.
050509 :  Applicant advised of rights and having elec ted 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.

050513 :  Commanding Officer, Electronic Attack Squadron 132, recommended discharge with a general (under honorable conditions) by reason of commission of a serious offense. Commanding Officer’s comments: “ ATAA H_’s behavior unquestionably demonstrates his inability for continued naval service as he is simply unwilling or incapable of adhering to the rules and regulations of the Uniform Code of Military Justice. During his short time on board, ATAA H_ has required excessive supervision dealing with his personal affairs and e x hibits inadequate motivation to correct his personal and professional deficiencies. He has a repeate d history of financial instability and adulterous affairs. I have administratively remove d his secret clearance and he has subsequently b een removed from the electronics wor k center. Given the nature of ARAA H_’s history and continued misconduct, I strongly recommend that ATAA H_ be separated from the Naval Service immediately for the commission of serious offenses, and that his characterization of servi c e be Gene r al (Under Honorable Conditions). ATAA H_ has been separated. ”
050517:  DD Form 214: Applicant discharged General (Under Honorable Conditions) by reason of misconduct due to commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20050517 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 desires an upgrade based on quality of service. When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service as honorable. Characterization of service as general (under honorable conditions) 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. There is irrefutable evidence that the Applicant’s conduct during his time in the Navy was not honorable. Indeed, the Applicant’s records contain:
•         Nonjudicial punishment proceedings on 20050112 for violation of UCMJ Article 123a Checks, etc., insufficient funds and Article 134 Adultery;
•         Letter of Instruction for Financial Responsibility;
•         Disciplinary Review Board; and
•         Nonjudicial punishment proceedings on 20050509 for violation of UCMJ Article 1 34 Debt, dishonorable failing to pay .
 The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls well below that required for an honorable characterization of service. An upgrade to honorable would be inappropriate; therefore relief is denied.

The Applicant requests a Narrative Reason for Separation change to “HONORABLE.” 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 Applicant violated UCMJ Articles 123a and 134. These are serious offenses for which a punitive discharge is authorized under Appendix 12 of the Manual for Courts-Martial (B). 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 is advised that there is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits or enhancing employment and educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. Since these issues do not serve to provide a foundation upon which the Board can grant relief, relief on this basis is not warranted.

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), Change 11, effective
26 April 2005 until Present, Article 1910-142, 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 123a Checks, etc., insufficient funds, Article 134 Adultery, and Article 134 Debt, dishonorably failing to pay .

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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