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

 
ex-AA, USN
Docket No. ND04-00614

Applicant’s Request

The application for discharge review was received on 20040303.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041022.  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 HONORABLE CONDITIONS (GENERAL)/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1.  My discharge was inequitable because it was based on one isolated incident in 4 years, 14 months and 31 days not counting the 1 year, 11 months, 25 days prior to discharge.

2.  Discharge was based on circumstances beyond my control.

3.  Discharge was really all about mental and sexual harassment and discrimination because I was a woman.

4.  Discharge because I was to young to fight those of position and power who could make or break an enlisted person for not compling.”

Documentation

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

Letter from Applicant addressed to Commander PERSCOM, undated (3 pages)
Letter from Applicant addressed to Deputy Morris, El Paso County, Sheriff Department, undated (4 pages)
Copy of DD Form 214 (member 4, 2 copies)
Certified copy of birth certificate and social security card (duplicated copies)
Statement of medical examination and duty status, dated January 11, 2002
Copy of DD Form 214 of first enlistment
Certification for Security officer firearms training and qualification course, dated August 10th and 11th 2002
Certificate for satisfactorily completing Street Survival ’97 course (8 hours), dated, October 15, 1997
Certificate for satisfactorily completing Street Survival ’97 course (16 hours), dated October 13, 1997
Award of Recognition of technique, ability, and knowledge from ASP (Armament Systems and Procedures, INC) Law Enforcement Academy, dated, October 15, 1997
Correspondence Final Exam from the University of Texas at Austin, undated
Official transcript from Richland Community College, dated July 30 1963
Applicant’s Standard form 50, effective date of August 27, 1999
Reserve Component Medical Cover Sheet, dated January 11, 2002
Certification from Department of Navy Chief of Naval Technical Training for Fireman Apprentice school, dated October 26, 1984
Applicant’s certification of completion of 20-hour basic training, dated September 20, 1994
Certification for being accepted for the enlistment in the United States Navy and will be placed on the Delayed Entry Program, undated
Student’s academic record from San Jacinto College, dated December 17, 1993
Student’s advanced standing summary of transfer credits from San Jacinto 
College 1993 and Richland Community College 1996, dated February 22, 1999 (2 pages)
Certification from Wackenhut Corporation, approved by The Texas Board of Private Investigators and Private Security, dated October 26, 1992
Diploma from Newman Smith High School, dated June 2, 1984
Letter of Appreciation from Dean of Instruction, Dr. C_ E_ A_, dated July 13, 1998
Applicant’s Standard form 50, effective date December 12, 1997
Applicant’s Emergency Medical Services test results from Texas Department of Health, dated February 25, 1995
Certificate of training from Security Officers, dated August 3, 2002
Applicant’s student transcript grade record, dated June 23, 1998
Letter of Appreciation from D_ V_ W_, Arizona State Prison Complex, dated July 28, 2000
Letter of Appreciation from H_ N_, Deputy Warden, Complex Operations, dated October 12, 2000
Certificate of Graduation from the Naval Technical Training Command, dated January 9, 1987
Certification to perform the duties of Emergency Medical Technician from Texas Department of Health, dated February 25, 1994
Certificate for completing 400 hours of instruction in Law Enforcement from the Department of the Navy, dated August 22, 1997
Certificate from The Arizona Correctional Officer Training Academy, dated June 9, 2000
Special Achievement Award from the Department of the Navy, dated June 26, 1998
Special Achievement Award from the Department of the Navy, dated September 19, 1997
Appreciation letter from R_ V_ G_, Brigadier General, U.S. Army, Deputy Commanding General, dated May 22, 2003
Applicant’s Medical records (25 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	831109 - 840710	COG
	Active:   USN			840711 - 871016	HON

Period of Service Under Review:

Date of Enlistment:  890117*	Date of Discharge:  910116

Length of Service (years, months, days):

	Active:    02  00  00
	Inactive:  None

Age at Entry:  25			Years Contracted:  4 

Education Level:  12			AFQT:  33

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.70 (2)	Behavior:  2.70 (2)		OTA:  2.70

Military Decorations:  None

Unit/Campaign/Service Awards:  NMOSR

Days of Unauthorized Absence:  5

*Enlistment contract not available [Extracted from DD FORM 214]

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

UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct – commission of a serious offense, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

890814:	Charged with violation of UCMJ, Article 86:  In that Airman T_ M_ G_ (Applicant), Helicopter Anti-Submarine Squadron Light THREE FOUR, Norfolk, Virginia, U. S. Navy, on Active Duty, did, on or about 0745, 890801, without authority, absent herself from her unit to wit:  Helicopter Anti-Submarine Squadron Light THREE FOUR located at Norfolk, Virginia, and did so remain absent until 0745, 890807.
	Charged dismissed.

890815:	Retention Warning:  Advised of deficiency (Financial irresponsibility), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

900102:	NJP for violation of UCMJ, Article 86 (Charge I): Unauthorized absence (three specifications).
	Charge I (specification 1): In that Airman T_ M_ G_ (Applicant) Helicopter Anti-Submarine Squadron Light THREE FOUR, Naval Air Station, Norfolk, Virginia, USNR, on active duty, did, on or about 891208, without authority, fail to go at the time prescribed to her appointed place of duty, to wit: Building LF-59, Naval Air Station, Norfolk, Virginia.
	Charge I (specification 2):  In that Airman T_ M_ G_ (Applicant) Helicopter Anti-Submarine Squadron Light THREE FOUR, Naval Air Station, Norfolk, Virginia, USNR, on active duty, did, on or about 891211, without authority, go from her appointed place of duty, to wit:  Building LF-59, Naval Air Station, Norfolk, Virginia.
	Charge I (specification 3):  In that Airman T_ M_ G_ (Applicant). Helicopter Anti-Submarine Squadron Light THREE FOUR, Naval Air Station, Norfolk, Virginia, USNR, on active duty, did, on or about 891212, without authority, fail to go at the time prescribed to her appointed place of duty, to wit:  Building LF-59, Naval Air Station, Norfolk, Virginia.
	Charge II: Violation of UCMJ Article 91: Insubordinate conduct toward warrant officer, non commissioned officer, or petty officer.
	Charge II (specification):  In that Airman T_ M_ G_ (Applicant). Helicopter Anti-Submarine Squadron Light THREE FOUR, Naval Air Station, Norfolk, Virginia, USNR, on active duty, having received a lawful order from Aviation Anti-Submarine Warfare Technician H_ G_ J_, a Senior Chief Petty Officer, to submit to a seabag inspection on 891211, an order which it was her duty to obey, did, on or about 891211, willfully disobey the same.
Charge III: Violation of UCMJ Article 134: Dereliction in the performance of duties (negligence).
Charge III (specification):  In that Airman T_ M_ G_ (Applicant). Helicopter Anti-Submarine Squadron Light THREE FOUR, Naval Air Station, Norfolk, Virginia, USNR, on active duty, being indebted to A_ D_ M_, in the sum of $400.00 for a personal loan, which amount became due and payable on or about 890915, did, at Naval Air Station, Norfolk, Virginia, from 891101 to 891212,dishonorably fail to pay said debt.
Findings:  Charge III was dismissed.  Guilty of all others.
	Award:  Forfeiture of ½ pay per month for 1 month (suspended for 6 months), extra duty for 45 days, reduction to E-2 (suspended for 6 months).  No indication of appeal in the record.

900102:	Retention Warning:  Advised of deficiency (CO’s NJP on 900102 and no longer recommended for advancement to E-4), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

900626:	Unauthorized absence from HSL-34 NAS Norfolk, VA at 0900, 900724.  Intentions Unknown.

900702:	Applicant surrendered on board at or around 0730.  Absence determined to be unavoidable.  Charged 6 days leave.

900731:	NJP for violation of UCMJ, Article 86 (Specification):  Unauthorized absence from 0930, 900712 until on or about 0334, 900713.
Charge II: Violation of the UCMJ, Article 134: Dereliction in the performance of duties (negligence), failed to perform duties as a member of Duty Section I.
Charge III: Violation of the UCMJ, Article 86 (Specification):  In that AN T_ (Applicant) on active duty, on or about 900626, did, without authority, fail to return to her place of duty, to wit:  Helicopter Anti-Submarine Squadron Light THREE FOUR, Building LF-59 Naval Air Station, Norfolk, Virginia.
Charge IV: Violation of UCMJ, Article 92 (Specification):  In that AN T_ M_ G_ (Applicant), USN, on active duty, on or about 900626, violate a lawful regulation, to wit:  Navy Military Personnel Manual, Article 3020200, Paragraph 1b, by wrongfully failing to check out on leave from the local area.
Charge V: Violation of UCMJ, Article 107 (Specification):  In that AN T_ M_ G_ (Applicant) USN, on active duty, did, on or about 900628, with intent to deceive, sign an official document, to wit: leave papers, which was false in that she went to Florida on leave not Ohio as her leave papers stated, and was then known by the said G_ (Applicant) to be so false.
Charge V was dropped due to lack of evidence.

Findings: Found to have committed the offenses charged.
Award:  Forfeiture of ½ pay per month for 1 month, reduction to E-2.  No indication of appeal in the record.

900810:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  The least characterization of your service may be under other than honorable conditions.

900820:	Applicant advised of her rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.  Applicant objects to this separation.

900914:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to a pattern of misconduct as evidenced by several minor disciplinary infractions and by a vote of 3 to 0 recommended separation, and if separated, with characterization of service as General (Under Honorable Conditions).

901022:	Commanding Officer recommended discharge General Under Honorable Conditions by reason of misconduct due to a pattern of misconduct as evidenced by several minor disciplinary infractions.  Commanding Officer’s comments: T_ M_ G_ (Applicant) is a twenty seven year old Airman Apprentice.  Since reporting to HSL-34 her performance has been below average to unsatisfactory.  She proved herself to be an extremely unreliable worker evidenced by numerous periods of unauthorized absence and an obvious disrespect to her superiors.  Her consistent evasiveness and irresponsibility concerning her conduct, as well as many indebtedness problems have made her an administrative burden to this command.  This command has given AA G_ (Applicant) ample counseling and every opportunity to reform.  In light of her past performance and misconduct as well as her many personal problems, she cannot be considered a candidate for future naval service.  I recommend that AA G_ (Applicant) be separated from the naval service with a General Discharge Under honorable Conditions.

901106:	CNMPC advised command (HSL THREE FOUR) that the Applicant is to be reprocessed for misconduct due to commission of a serious offense because case did not meet requirement for misconduct due to a pattern of misconduct.

901114:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a commission of a serious offense as evidenced by Commanding Officer nonjudicial punishment of 900102.

901114:	Applicant advised of rights and having not consulted with counsel certified under UCMJ Article 27B, elected to waive all rights.  Did not object to discharge.

901114:	Commanding Officer recommended discharge by reason of misconduct due to the commission of a serious offense.  Commanding Officer’s comments: (verbatim):  T_ M_ G_ (Applicant) is a twenty seven year old Airman Apprentice.  Since reporting to HSL-34 her performance has been below average to unsatisfactory.  She proved herself to be extremely unreliable worker evidenced by numerous periods of unauthorized absence and an obvious disrespect to her superiors.  Her consistent evasiveness and irresponsibility concerning her conduct, as well as many indebtedness problems have made her an administrative burden to this command.  This command has given AA G_ (Applicant) ample counseling and every opportunity to reform.  In light of her past performance and misconduct as well as her many personal problems, she cannot be considered a candidate for future naval service.  I recommend that AA G_ (Applicant) be separated from the naval service with a General Discharge Under Honorable Conditions.

901213:	Applicant advised of her rights and having elected not to consult with counsel certified under UCMJ Article 27B, 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 separation.

901226:	CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

910104:	CNMPC directed the Applicant's discharge under honorable conditions (general) by reason of misconduct due to the commission of a serious offense and canceled previous (CNMPC MESSAGE OF 901226) authority to discharge.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19910116 under honorable conditions (general) for misconduct due to the 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).

Issue 1:  The Applicant’s discharge was based on several minor disciplinary infractions, not one incident.  A characterization of service of under honorable conditions (general) 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 award of nonjudicial punishment (NJP) on two occasions for violations of Articles 86, 91, 92, 107, and 134 of the UCMJ.  The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service.  An upgrade to honorable is inappropriate.  It must be noted that most Sailors serve honorably and well and therefore earn honorable discharges.   In fairness to those Sailors, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  Relief denied.

Issues 2-4:  The Board found no evidence to support the Applicant’s claims of mental and sexual harassment nor discrimination by her chain of command.  The evidence of record does not demonstrate that the Applicant was not responsible for her conduct or that she should not be held accountable for her actions.  Relief denied.

The following is provided 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 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 proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  The Applicant’s evidence of post-service conduct was found not to mitigate her misconduct sufficient to warrant an upgrade to her discharge.   

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 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 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.  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 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