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

 ex-LTJG, USN
Docket No. ND99-00684

Applicant’s Request

The application for discharge review, received 990427, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant did not list a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000201.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: SECNAVINST 1920.6A.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

I believe that I was wrongfully, as well as, excessively prosecuted by my superiors for raising issues concerning unlawful discriminatory practices I encountered during my assignment as a Student Naval Aviator at Naval Air Station, Kingsville Texas.  I fully accept my negligent role in improperly submitting my travel entitlement paperwork.  It is a mistake that I have painfully endured since the day I voluntarily came forth to clarify the validity of my entitlement.  It is important to note that at no time was the government aware or were they scrutinizing my BAQ or travel entitlement status.  I am an honorable man and truly believed I had acted accordingly.  I am not alone with this belief because Judge R_ who presided over my court-martial stated, "that my previous immaculate military record did not go unnoticed and he still felt I was capable of good future service".  So why was I not allowed to work hard, overcome this setback and redeem myself?

On August 12, 1994, 1 submitted a formal Article 138 complaint against Wing Commander, Captain S_ C_ and Training Squadron Twenty Two Commanding Officer, Commander J_ S_.  The complaint addressed professional discrimination, unfair practices and disrespect within Training Air Wing Two.  During an audience with Captain C_, he attempted to intimidate and coerce me into withdrawing my complaint.  He concluded our session with threats of retaliation.  Shortly thereafter, the entitlement issue escalated from a simple mistake that I had reported, to a major attempt to defraud the government.  The Officer in Charge of the Personnel Support Detachment (PSD) had informed me earlier, that because I had come forth with this error and was prepared to make immediate restitution, the matter would probably be a non-event.

Captain C_, after receiving PSD's report, opted to proceed with a court-martial even though less severe options were presented.  He then summoned me for another meeting in which he indicated he would dispense with court martial proceeding if I withdrew my Article 138 complaint.  I respectfully requested that the complaint be allowed to proceed, and likewise so did the court martial.  The offer to discontinue with the proceeding clearly indicated this matter was personal am not about justice.

When the court martial convened I was charged with four articles consisting of numerous specifications.  However when the case was concluded, I was in essence guilty of wrongful appropriation of $909.70 in dependent travel payment.  Charges of fraudulent receipt of $11,327.14 in BAQ benefits were alleged but the Judge wisely ruled not guilty.  It was a clear attempt to substantiate disposition of this matter at a General Court - Martial.  For the record I reimbursed the government once I initially came forth and became aware of my non-entitlement.

Additionally, in an attempt to appear unbiased in bringing forth this case, the Wing presented only one character witness.  This individual was assigned to Wright Patterson AFB in Ohio and had never served as my superior in any capacity.  His link to this case was that he was a senior African-American officer, had previously been assigned to the wing and available to assault my character.  Our contact was minimal and we could at best be described as acquaintances.  Although there were an abundance of flight instructors, superiors and peers, the prosecution did not call a single wing officer to characterize my performance as an officer.  I do not know why other more probable character witnesses were not called.  However, I would certainly question why the prosecution would present a minority against another minority in a case that was initiated in the interest of justice.  There is a possibility that the use of this particular officer to describe my character was purely coincidental.  Nonetheless, for him to return to NAS Kingsville to become the Wing Commander, and eventually convene a Board of Inquiry to terminate my career is more than a stretch of ones imagination.

I have pondered the events of my 12 year military career and how it was abruptly ended.  I take full responsibility for any adverse action on my part that contributed to my being assigned a General Court - Martial.  However I still have difficulty understanding why the Judge presiding over the case could see the merits of my previous record and determine I had good potential for continued military service, and deserved a chance to make amends.  My superiors, on the other hand, chose to ignore my 12 years of proud service.  They convened a Board of Inquiry and opted to terminate my military service.  Although my military conduct and performance continued to remain high while performing as the Facility Support Contract Project Manager, I was discharged with an "Other than Honorable!' characterization.  There was no evidence offered during the inquiry that suggested a pattern of substandard performance or conduct.  A review of my conduct and work habits, even after my court-martial, reflects my professionalism.  However, my military service was ended with an unfavorable characterization based solely on the adjudicated court-martial.  The members of the Board of Inquiry did not consider my previously unblemished military record, the stressful and sometimes biased environment I had encountered within the wing and I problems revolving around establishing a definitive housing location.  Surely justice was not served in this case.  The Board of Inquiry results clearly brings into question the standards of fairness in this particular administrative proceeding.  I often wonder how different the outcome might have been had I dropped the Article 138. 1 can not do anything to change past events, but I can certainly continue to be a good husband and role model for my children,

I respectfully request that the Board for Correction of Naval Records set aside this unjust "Other Than Honorable' discharge assignment and replace it with an "Honorable" discharge.  I have the rest of my life to positively move forward and I ask your assistance in making it a reality, REMOVE THIS NEGATIVE SYMBOL OF MILITARY SERVICE AND WATCH ME SOAR!

Documentation

In addition to the service record, the following additional documentation, submitted by the applicant, was considered:

Applicant's application (DD Form 149) to BCNR
Copy of Applicant's Compliant of Wrongs dated 12 Aug 94
Copy of Applicant's General Court-Martial Proceedings dated 1 Feb 96
Copy of Applicant's Defense Counsel letter concerning R.C.M. 1105 Matters dated 11 Jan 96
Report on Fitness of Officers (8 reports)
Applicant's Show Cause procedures dated 8 Apr 96
Board of Inquiry dated 17 Apr 96
CHNAVPERS letter of 14 Mar 96 request applicant show cause for retention

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR	5 yrs/ 06 mos/ 22 days (extracted from applicant’s DD214) 
	Inactive:  USNR 		900822 - 910508	COG

Period of Service Under Review:

Date of commission:  910509		Date of Discharge:  961130

Length of Service (years, months, days):

	Active:    05  06 22
	Inactive:  None

Age at Entry:  26			Years Contracted:  4 

Education Level:  16			

Highest Rank:  LTJG

Final Enlisted Performance Evaluation Averages:  All officer performance reports were available to the Board for review.

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, USMC MUC, USMC(RESERVES)GCM, Scuba Insignia

Days of Unauthorized Absence:  None 

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  SECNAVINST 1920.6A and BUPERS ORDERS 3036.

Chronological Listing of Significant Service Events:

950810:	General Court Martial (29 Mar, 18 May 27-28 June and 8-10 Aug 95)
Charge I:  violation of the UCMJ Article 107 (3 Specs).
Specification 1:  On or about 13 Apr 92, with intent to deceive, sign an official record, to wit: Record of Emergency Data/Dependency Application NAVPERS 1070/602, which record was false in that it reflected the said accused's dependent resided at XXXX S_ P_ I_ Drive, Apt. #___, C_ C_, TX, and was then known by the said accused to be so false.
Specification 2:  On or about 13 Jan 93, with intent to deceive, sign an official record, to wit:  Record of Emergency Data/Dependency Application NAVPERS 1070/602, which record was false in that it reflected the said accused's dependent resided at XXXX S_ B_ B_, Apt. #___, K_, TX, and was then known by the said accused to be so false.
Specification 3:  On or about 11 Jan 93, with intent to deceive, make to Disbursing Officer, Ms. L_ S_ L_, an official statement, to wit:  "My dependents have moved to XXXX S_ B_ B_, Apt #___, K_, TX," or words to that effect, which statement was totally false, and was then known by the said accused to be so false.
Charge II:  violation of UCMJ Article 121 (2 Specs).
Specification 1:  from on or about 13 Nov 92 until on or about 30 Jun 94, wrongfully appropriate BAQ benetifs, of a value of $11,327.14. the property of the U.S. Government.
Specification 2:  did, at or near Kingsville, TX, on or about 11 Jan 93 wrongfully appropriate dependent travel benefits payments, of a value of $909.70, the property of the U.S. Government. 
Charge III:  violation of the UCMJ, Article 132:  on or about 11 Jan 93, by presenting a dependent travel claim to Ms. L_, an officer of the U.S. duly authorized to approve and pay such claim, present for approval and payment a claim against the U.S. in the amount of $909.70 for dislocation allowance in conjunction with moving his dependents from NAS Corpus Christi to NAS Kingsville which claim was false and fraudulent in the amount of $909.70 in that the said accused's dependent never relocated to Kingsville and was than known by the said accused to be false and fraudulent.
Findings:  To Charge I and specifications 2 and 3 thereunder, guilty.
To Charge II and specification 2 thereunder, guilty.
To Charge III, guilty
Sentence:  To be reprimanded, fined $1,000.00 (to be confined 90 days in the event the fine is not paid within ten calendar days after the convening authority's action) and to lose 500 numbers on the lineal list of officers on active duty in the Naval service.
Clemency Request:960111
CA: 960201:  only the sentence which provides for reprimand and loss of 500 numbers on lineal list of officers on active duty in the naval service approved and executed.
SJA:  960318 - No part of the findings or sentence is found to be unsupported in law, and reassessment of the sentence is not approptiate.

960201:	Letter of Reprimand issued a result of being convicted by general court-martial for violation of UCMJ Articles 107, 121, and 132.  Applicant acknowledged receipt on 960202.

960314:	BUPERS notified applicant that administration show cause for retention proceedings has been initiated due to his misconduct, Board of Inquiry has been requested, and least favorable characterization of service may be Other Than Honorable.  Applicant advised of his rights.

960813:	Board of Injury (BOI) Report:  BOI considered applicant's case and recommended him for separation from the Naval Service with an Other Than Honorable discharge.  [EXTRACTED FROM BUPERS LTR TO SECNAV OF 4OCT96.]

960909:	Applicant's rebuttal:  "Such a characterization (an Other Than Honorable discharge) is disproportionately harsh relative to the seriousness of the offenses...and ignores the positive aspects of my lengthy military career and imposes a tremendous punishment upon my entire family."  [EXTRACTED FROM BUPERS LTR TO SECNAV OF 4OCT96.]

961004:	BUPERS recommended to the Secretary of the Navy that applicant be discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  

961024:	Secretary of the Navy approved applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 961130 under other than honorable conditions for misconduct due to commission of a serious offense (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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 provided a letter stating his issues.  The applicant states that he was wrongfully and excessively prosecuted by his superiors for raising issues in an Article 138 Complaint concerning unlawful discriminatory practices encountered as a Student Naval Aviator at NAS Kingsville.  The NDRB found this issue a non-mitigating factor in the applicant’s documented misconduct.  The applicant was found guilty of violating three Articles of the UCMJ at a General Court- Martial.  The General Court- Martial (GCM) was reviewed by the Judge Advocate General on 960518 and found “in accordance with Article 69(a), Uniform Code of Military Justice, 10 U.S.C. 869(a), and no part of the findings or sentence is found to be unsupported in law, and reassessment of the sentence is not appropriate.” Relief not warranted.

The applicant further takes issue with the recommended discharge of other than honorable by the Board of Inquiry (BOI).  The NDRB found no impropriety of inequity in the BOI’s recommended discharge of other than honorable discharge.  Although the applicant had no record of misconduct prior to the General Court- Martial, the BOI was charged with reviewing the applicant’s entire service record.  The BOI review included the conviction of the GCM on three violations of the UCMJ, all of which are considered serious offenses.  The NDRB found the BOI’s findings and recommendation were proper and equitable.  Relief is not warranted.

Pertinent Regulation/Law (at time of discharge)

A.  The Secretary of the Navy Instruction 1920.6A of 21 November 1983 (Administrative separation of Officers), establishes policies, standards and procedures for the administrative separation of Navy and Marine Corps officers from the naval service in accordance with Title 10, United States Code and DoD Directive 1332.30 of 15 October 1981.

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 obtain a copy of DoD Directive 1332.28 by writing to:

		DA Military Review Boards Agency
		Management Information and Support Directorate
		Armed Forces Reading Room
		Washington, D.C.  20310-1809

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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		Washington Navy Yard
		720 Kennon Street SE Rm 309
		Washington, D.C.  20374-5023