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

  
ex-SR, USN 
Docket No. ND03-01392

Applicant’s Request

The application for discharge review was received on 20030820.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20040617.  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 shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1 DEAR REVIEW OF DISCHARGE OR DISMISSAL BOARD,

THE DISCHARGE OF WHICH I RECEIVED IS IMPROPER BECAUSE I WAS FALSELY ACCUSED OF TAKING AN UNAUTHORIZED LEAVE. MY LEAVE HAD BEEN APPROVED DOWN FROM MY CHIEF PETTY OFFICER UP TO MY CO (CAPTAIN D___ ).  I WAS INDEED GRANTED A LEAVE CHIT. THE QUARTERDECK WATCH FAILED TO LOG AND DATE MY LEAVE INTO THE QUARTERDECK LOG BOOK. THE FOLLOWING SUMMARY WILL CLEARLY GIVE THIS BOARD A CLEAR PICTURE OF WHY I’M APPLYING FOR A CHANGE IN THE TYPE OF DISCHARGE I’VE UNFAIRLY RECEIVED.

AT THE TIME THAT I ROUTED MY LEAVE CHIT, THE SHIP (USS BUNKER HILL CG 52) WAS UNDERWAY. I SUMMITTED MY LEAVE CHIT IN THE MIDDLE OF OCTOBER FOR ME TO BE ABLE TO TAKE LEAVE FOR THE SECOND PORTION OF THE CHRISTMAS SHUTDOWN PERIOD. BEFORE ANY LEAVE TIME WAS TAKEN UPON THE SHIP’S CREW, A CENSUS WAS TAKEN AND HOW TO DIVIDE UP THE DAYS OF LEAVE AMONG THE CREW. I CHOSE TO GO ON LEAVE FOR THE SECOND HALF OF THE SHUTDOWN PERIOD BECAUSE I WAS GOING HOME FOR CHRISTMAS TO BE WITH MY FAMILY AND ALSO TO SEE MY GRANDMOTHER WHO WAS ILL DURING THIS TIME.
MY LEAVE CHIT WAS DATED FOR ME TO TAKE A LEAVE ON 16 DECEMBER 2000 THROUGH 15 JANUARY 2001 AT 1730. I HAD ALL OF THE NECESSARY OFFICERS SIGNATURES TO AUTHORIZING MY LEAVE. I ENDED UP CHECKING AT THE QUARTERDECK AT ABOUT 2030 WITH THE QUARTERDECK WATCH SO HE COULD LOG DOWN MY LEAVE TIME IN THE QUARTERDECK LOG BOOK. I HAD IN MY HAND THE LEAVE CHIT, MILITARY ID, AND MY BAGS IN WHICH I HAD TAKEN WITH ME FOR DEPARTURE. I GOT MY LEAVE CHIT BACK FROM THE QUARTERDECK WATCH AND DEPARTED THE SHIP AND LEFT FOR LEAVE. I CAUGHT A CAB FROM BASE TO THE AIRPORT. I RETURNED BACK IN SAN DIEGO, CALIFORNIA ON 13 JANUARY 2001 FROM LEAVE AND STAYED IN A HOTEL FOR TWO DAYS BEFORE RETURNING TO THE SHIP FROM MY LEAVE. I RETURNED TO THE USS BUNKER HILL CG52 ON 15 JANUARY 2001 AT ABOUT 1430-1630 BEFORE 2400 THAT NIGHT.  AFTER RETURNING TO THE SHIP I CHECKED IN WITH QUARTERDECK WATCH SO HE COULD RECORD IN THE DECK LOG THE DATE AND TIME OF MY RETURNING FROM LEAVE. THIS WAS THE FIRST TIME THAT I REQUESTED LEAVE SINCE I’VE BEEN IN THE MILITARY. I FOLLOW ALL MILITARY RULES AND REGULATIONS TO ACQUIRE MY APPROVE LEAVE. QUARTERDECK WATCH FAILED TO DATE AND LOG MY APPROVED LEAVE AS REQUIRED BY THE QUARTERDECK WATCH. BECAUSE OF QUARTERDECK WATCH NOT FOLLOWING PROPER PROCEDURES, I WAS COURT MARIAL UNFAIRLY.

AFTER I RETURNED, WE WENT OUT ON DEPLOYMENT. WHILE OUT TO SEA THE MASTER AT ARMS NEVER ONCE MENTIONED TO ME THAT I WAS AWOL. HE DIDN’T MENTION TO ME THAT I HAD NO PERMISSION TO LEAVE THE SHIP NOR TO TAKE MY LEAVE. WHEN WE RETURNED FROM UNDERWAY, THE MASTER AT ARMS CAME UP TO ME AND TOLD ME THAT I HAD NOT BEEN AUTHORIZE TO TAKE LEAVE. AT THAT TIME, I WENT TO MY RACK AND GOT THE LEAVE CHIT AND SHOWED IT TO HIM. HE MENTIONED THAT I DIDN’T CHECK OFF THE SHIP WITH THE QUARTERDECK WATCH AND THERE WASN’T ANYTHING LOGGED DOWN IN THE DECK LOG ABOUT ME TAKING LEAVE. TWO DAYS AFTER WE CAME BACK FROM DEPLOYMENT, THE MASTER AT ARMS, TOLD ME TO MEET HIM IN HIS OFFICE IN A CLEAN UNIFORM. AT THIS POINT HE HAD TOLD ME THAT I WAS AWOL AND HE WAS GOING TO PUT ME IN THE BRIG. I WAS TAKEN TO THE BRIG WHICH I SPENT ABOUT 35 DAYS THERE. THE MASTER AT ARMS ENDED UP HAVING ME COURT MARIALED UNFAIRLY. I FOLLOWED ALL OF THE CHAIN OF COMMAND TO ACQUIRE MY AUTHORIZED LEAVE.

I WAS REPRESENTED BY LT G___ (JAG OFFICER) DURING MY COURT MARIAL. HE TOLD ME THAT THE PROSECUTOR HAD NO PHYSICAL EVIDENCE OF ME BEING AWOL. HE ALSO EXPLAINED TO ME (LT G___), THAT THE PROSECUTING ATTORNEY WOULD SAY AND DO ANYTHING TO DISCREDIT ME FROM WINNING MY CASE. THE PROSECUTING ATTORNEY DID NOT HAVE THEIR CASE TOGETHER DURING THE PROCEEDINGS. THE JUDGE CALLED FOR A RECESS SO THEY COULD GET THEIR FACTS PERTAINING TO MY CASE TOGETHER. THE PROSECUTING ATTORNEY COULD NOT FIND ANY PROOF OF ME HAVING AN UNAUTHORIZED LEAVE. DURING RECESS TIME, THE MASTER AT ARMS, WAS OUTSIDE OF THE COURT ROOM SAYING, “JUST 2 MORE DAYS, JUST 2 MORE DAYS ON F___ AND WE GOT HIM!”. LT G____ ALSO STATED TO ME THAT THE PROSECUTING ATTORNEY WOULD SAY ANYTHING TO THE JUDGE TO HURT MY CHARACTER. THE PROSECUTING ATTORNEY HAD ONLY ONE WITNESS, BMI M____, WHICH WAS MY LPO. IN HIS TESTIMONY HE, BM1 M____, UPSETTED THE PROSECUTION WITH HIS TESTIMONY. BMI M____ TOLD THE COURT ABOUT HOW HARD OF A WORKER THAT I WAS, A LEADER IN THE DIVISION, AND THAT SOMEDAY I WOULD MAKE A GOOD BOSINSMATE. BM1 M____ HAD NOTHING TO SAY ABOUT ME NEGATIVE, ALTHOUGH HE WAS THE PROSECUTION’S WITNESS. THIS MADE THE PROSECUTION VERY MAD. ON MY BEHALF, LT G_ WAS ABLE TO PRODUCE A COPY OF MY AUTHORIZE LEAVE CHIT TO THE JUDGE WHICH SHOWED THAT I WAS NOT AWOL, ALONG WITH SEVERAL CHARACTER WITNESSES WHO TESTIFIED IN PERSON OR ON PAPER (SENT CHARACTER LETTERS TO LT G___ OR THE JUDGE).  MY DIVISION OFFICER HAD REQUESTED TO THE COURT TO BE ABLE TO TESTIFY ON MY BEHALF. THE PROSECUTING ATTORNEY OBJECTED TO HIM TESTIFYING, THE JUDGE GRANTED HIS OBJECTION TO NOT LET MY DIVISION OFFICER TESTIFY. THE PROSECUTOR COULD NOT PRODUCE ANY TIME OR DATE IN WHICH I HAD LEFT THE USS BUNKER HILL CG 52. THE JUDGE GRANTED ME THE OPPORTUNITY TO RETURN TO MY SHIP OR THE CHANCE TO COME OUT TO END MY ENDLISTMENT AS BEING FULFILLED. THE JUDGE ORDERED MY RELEASE FROM THE BRIG AS TIME SERVED. THE MASTER AT ARMS, LEFT ME IN THE BRIG FOR ANOTHER 2 DAYS DISOBEYING THE JUDGE’S ORDER. MY FAMILY WHICH TESTIFIED AT THE COURT MARIAL HAD TO CONTACT LT G____ IN ORDER TO GET ME RELEASED FROM THE BRIG. LT G___ ORDERED THE MASTER AT ARMS TO COME GET ME FROM THE BRIG IMMEDIATELY OR HE WILL FACE CHARGES FOR DISOBEYING AN LAWFUL ORDER.  WHEN CMA B____ CAME TO THE BRIG TO PICK ME UP, HE WAS SAYING IN THE VAN THAT MY MOTHER AND AUNT MUST HAD SAID SOMETHING TO BMI M____ IN ORDER TO GET HIM TO CHANGE HIS TESTIMONY IN MY BEHALF.  MY MOTHER AND AUNT HAVE NEVER SEEN BMI M___ UNTIL THE COURT MARIAL. CMA B___ STATEMENTS. WAS VERY INAPPORIATE AS WELL AS NASTY TOWARDS ME AND MY FAMILY.

TIlE JUDGE TOLD ME DURING THE PROCEEDINGS THAT MY RECORD WOULD NOT BE TARNISHED. I WAS TOLD AFTER 6 MONTHS OF MY DISCHARGE DATE, MY OTHER THAN HONORABLE DISCHARGE WOULD AUTOMATICALLY BE CHANGED TO AN HONORABLE DISCHARGE AS LONG AS I KEEP MY RECORD CLEAN. I’VE FOUNDOUT THIS TOO ISN’T TRUE OF MY DISCHARGE BEING AUTOMATICALLY CHANGED.  WHEN I BEGIN RECENTLY TO APPLY FOR STATE JOBS, IS WHEN I FOUND OUT THAT MY MILITARY RECORD HAD INDEED BEEN TARNISHED BECAUSE OF THIS OTHER THAN HONORABLE DISCHARGE.  SINCE I HAVE BEEN OUT OF THE NAVY I HAVE BEEN ATTENDING COLLEGE PART TIME, WORKING STEADY, PARTICIPATING IN VARIOUS COMMUNITY PROJECTS, ATTENDING CHURCH ON A REGULAR BASIS, AND HAVEN’T GOTTEN INTO ANY KIND OF TROUBLE. MY DREAM IS TO BECOME A CORRECTIONAL OFFICER FOR THE STATE OF GEORGIA (HOME STATE). BECAUSE OF THIS UNFAIR DISCHARGE I AM UNABLE TO OBTAIN A STATE JOB AT THIS TIME.  WHEN I GO FOR JOB INTERVIEWS WITH VARIOUS STATE AGENCIES, THERE ARE ALWAYS QUESTIONS ABOUT MY DISCHARGE. I AM ASKING AND PLEADING WITH THE BOARD, TO PLEASE CHANGE MY DISCHARGE FROM OTHER THAN HONORABLE TO HONORABLE… PLEASE.

Documentation

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

Copy of DD Form 214
Character Reference Letter dated July 20, 2003
Handwritten Reference Letters (2)
Letter from Applicant’s Mother (3 pages) dated July 24, 2003
Character Reference Letter dated July 30, 2002 (2 pages)
Character Reference Letter from REV. P__ G___
Reference Letter from Captain A___ P___, Thomasville Fire Dept, dated July 11, 2003
Character Reference Letter from R__ C. M__, M.D. dated July 18, 2003
Character Reference Letter from REV. DR. I. L. M___, SR dated July 22, 2003
Character Reference Letter from E___ D. W__, dated July 14, 2003
Reference Letter from Applicant’s Grandmother dated July 25, 2003
Reference Letter from D__ A. B___ dated August 2, 2003
Reference Letter from M___ P. G___ dated July 19, 2003
Copy of College ID
Copy of Airplane Ticket
Copy of Cheap Tickets Information (2 pages)
Copy of Lifeguard and Community First Aid and Safety Certificate (Front & Back)
Copy of CPR Certificate (Front & Back)
Copy of Certificate of Completion (Fire Safety)
Copy of Certificate of Completion (Ombudsman Program, SOWEGA Council on Aging, Inc
Copy of Certificate of Training (Documentation and Food Service)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	980508 - 980601	COG
	Active:   USN 			None

Period of Service Under Review:

Date of Enlistment:  980602		Date of Discharge:  000403

Length of Service (years, months, days):

	Active:    01  09  02
	Inactive:  None

Age at Entry:  21			Years Contracted:  4 (12 months extension)

Education Level:  12			AFQT:  42

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (1)	Behavior:  3.00 (1)		OTA:  3.17

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  29

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

991002:	NJP for violation of UCMJ, Article 121: Larceny of government property.
	Award:  Forfeiture of $500.00 pay per month for 2 months, restriction to the limits of the ship and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

991111:	NJP for violation of UCMJ, Article 107: False official statement, violation of UCMJ, Article 121: Larceny and wrongful appropriation.
	Award:  Forfeiture of $475.00 pay per month for 2 months, restriction to the limits of the ship and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

991117:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

991117:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

991208:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  Commanding Officer’s comments: [Applicant] has, on two separate occasions, betrayed the trust of his fellow Sailors by stealing property.  Blatant disregard for the belongings of others cannot be tolerated onboard a Navy vessel.

000207:	NJP for violation of UCMJ, Article 86: Absence without leave from USS BUNKER HILL (CG-52) from 991216 to 000115(29days/S), violation of UCMJ, Article 134: Breaking restriction; violation of UCMJ, Article 102: Award:  Special Court-Martial.  No indication of appeal in the record.

000209:	Retention Warning:  Advised of deficiency (Letter of indebtedness from Yellow Tow dated January 26, 2000), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

000213:	COMCRUDESGRU THREE directed the 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 20000403 under other than honorable conditions for misconduct due to commission of a serious offense (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

Issue 1.  The Applicant contends that, “The discharge of which I received is improper because I was falsely accused of taking an unauthorized leave.”  The evidence of record shows that the applicant was recommended for separation on 17 November 1999 for misconduct due to commission of a serious offense as evidenced by his two nonjudicial punishment proceedings for larceny, not for unauthorized absence.  Relief on this basis is denied.

The Applicant claims that he went on leave on 16 December 2000 with a valid leave chit after checking out with appropriate authorities.  However, the Applicant does not provide any evidence to support this claim nor is there any evidence in the record to support this claim.  In fact, the Applicant’s record shows he was awarded 45 days restriction on 11 November 2000, which would have expired on 26 December 2000.  Relief on this basis is denied.

When the service of a member of U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  An Under Other Than Honorable Conditions 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 nonjudicial punishment proceedings for two violations of Article 121 and one violation of Article 107 of the UCMJ.  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.  Relief is not warranted.

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural error or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no such errors after a review of Applicant’s case.  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.  The NDRB is authorized, however, 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 should be provided to the Board include credible proof of educational pursuits, verifiable employment records, documentation of community service and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided sufficient documentation for the Board to consider.  Therefore, no relief is appropriate.

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 any claims of post-service accomplishments or any other evidence related to his 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 28, effective 
30 Mar 00 until 29 Aug 00, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B.  In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 121, Larcenty if adjudged at a Special or General Court Martial.

C.  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.  

D.  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.

E.  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 view DoD Directive 1332.28 and other Decisional Documents by going online at "afls14.jag.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:

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