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

  ex-MM3, USN
Docket No. ND05-00128  

Applicant’s Request

The application for discharge review was received on 20041029.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing before the board in the Washington National Capital Region.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050201.  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:

“Issue #1. My Discharge was inequitable because it was based on one isolated incident in 40 months of service with no other adverse action.

Issue #2 My discharge was inequitable because it was based on me being charged for a crime I did not commit.

Issue #3 My discharge was inequitable because I am innocent of the crime I was charged with

Issue #4 My record does not reflect the fact that I served for 2 years and received an honorable Discharge.

Issue #5 My discharge was inequitable because I am required to pay the NAVY $45,000 for the training I received while in the NAVY.

Issue #6 My discharge was inequitable because it does not allow me to reenlist and finish my military career.

Issue #7 My discharge was inequitable because it doesn't allow me to maintain my rank of E-5”

Issue 8.  “I see the dangers we face around the world and I want to honorably serve my country again.  I am writing this letter today in order to formally request that my Discharge from the Navy be upgraded.  However, unlike most individuals, I am also requesting that my reenlistment code be changed in order for me to fulfill my contractual obligation to the navy.  I am not asking the board to have pity on me nor do I proclaim to be one hundred percent innocent of the charges that I faced, but I would ask for the opportunity to rectify the situation and to once again serve my country with honor, courage and commitment.

I was charged and found guilty of misconduct due to commission of a serious offense at Captain’s Mast.  The offense in question was using false information to intimidate the Navy.  I’m quite sure that you will get the transcripts and statement that accompany this ordeal, but I would like to give a personal account of what happened.

On the date in question, DC3 P_ and myself were having a conversation in which he informed me that some sailors in his division had constructed a pipe bomb and had placed it in the hanger bay on board the U.S.S. Carl Vinson.  He also said that he wanted someone to report it, but he didn’t want to be involved if I did report the device.  At the time I believed his story to be a joke, and asked him where it was? I told him that if it were there I would report it and I wouldn’t involve him.  After eating my lunch I walked through the area that he mentioned; I was astonished to find that the pipe bomb was exactly where he said it was.

I went back to my division and spoke with a First Class and without telling him all of the details I asked him what if anything I should do.  He told me the seriousness of a bomb threat and told me that if there was a device on board that I thought might be a bomb that I should report it whether I believed it to be fake or not.  He told me that you treat every device as if its real because a person could lie and say that it’s a fake, then the device could explode and kill.

I followed the advice of my first class and reported it.  The MAA looked at the device and called away the bomb threat.  The bomb squad was called in and examined the device.  They could not be sure from examining the device whether it was real or not, so they decided to detonate it in a controlled environment.  After the device was neutralized the captain asked, "who found the device”.  A master at arms pointed me out and the captain walked over to me with the executive office by his side.  He looked me square in the eye and extended his hand.  With a firm handshake he smiled and told me that I had done an exceptional job in finding the device and reporting it.  I was relieved that everything had worked out and was glad that I had followed my first class’s advice.  At this point I had done nothing wrong.  I was informed of a bomb and I had reported it.  This was the correct procedure whether or not the bomb was believed to be real or fake.

Immediately after the device was disposed of I was questioned by the Master at Arms about the incident and was told to await the arrival of 2 N.C.I.S. agents.  Once the agents arrived they immediately searched my lockers on the ship, my car and my home in order to ensure that I was not the individual responsible for constructing the device.  After a very thorough search of all of my personal belongings the agents were convinced that I had nothing to do with the making of the device.  Further investigations and witness testimony also confirmed that I had no knowledge of the device prior to my discussion with DC3 P_.  They then took me into there office to make a statement of events which transpired I voluntarily gave a statement to the agents about the events; however, I did as DC p_ had asked and didn't put his name in the report.  Instead I told the agents that I had simply come across the device while walking threw the hanger bay.  If there were one decision in my life that I wish I could take back then hands down this would be it.  I should have realized that my first obligation was to the Navy, and not to any individual in the organization.  This by far is the dumbest thing I have ever done in my life.  By falsifying that one statement, I had ruined my entire navy career and disgraced myself in the eyes of my nation.

A full investigation was done into the making of the device and the entire incident.  The NCIS agents found out everything: who built the device, who placed the device in the hanger bay, and everyone that knew about it prior to it being placed there.  The agents also found out one crucial piece of evidence.  In DC3 p_('s) report he told the agents that he asked me to report the incident, but he told me that the device was fake.  The agents then requisitioned me about the events at which time I confirmed DC3 p_('s) statement that he had submitted.  The question was also raised as to whether or not DC3 P_ told me it was fake when he asked me to report it.  He claimed that he told me it was fake.  He never told me explicitly that the device was fake, as I told the agents; however, I was never under the impression that the device would detonate.  In either scenario the procedure would have been the same so I wasn’t sure of the relevance of the question at the time.

Months passed and the individuals involved who had not gone AWOL were placed on restriction in order to await their court martials.  I, on the other hand, was free to perform my everyday routine.  I am not sure when the decision was made, but I do remember my division officer telling me that I was to be placed on restriction and that a captains mast was pending.  My fiance had just had a baby, my daughter was only a few weeks old and both her and her mother needed me to help them.  I felt totally helpless.  I had made a commitment to my fiance and to daughter to be there for them and to provide for them.  At this point I could do neither.  Finally the date of my captains mast had arrived only I wasn’t being charged with falsifying the statement to NCIS.  Rather I was being charged with using false information to intimidate the Navy.  I was being charged with knowing the bomb was fake and reporting it as if it were real.  I was really confused at this point because I believed that the procedure was the same wither I thought it was fake or not, once it was identified as a bomb by DC3 P_, so I went to the MAA station and asked them whether or not it was mistake.  We looked up the bomb procedure in the manual and confirmed that the procedure was the same whether it was believed to be fake or not.  I was confident that this was a mistake and I even made a copy of the procedure to bring with me to captains mast.

On the day of my Captains Mast I walked in to stand before the captain.  He was furious his eyes were bloodshot red and it looked as if tears were forming he was so mad.  He immediately tore into me worse then anyone had ever done in my life.  He walked around the podium and looked me in my eye face to face.  He told me that I didn’t deserve to be a second class petty officer.  He told me that I didn’t deserve to be a 3rd class petty officer, but he only had the authority to bust me down one rank.  He then told me that I didn’t deserve to be in his navy and since this was a serious offense it didn’t matter that this was my first captains mast; it was enough to get me out.  Then suddenly it became clear what was going on.  I wasn’t being charged with falsifying a document because it wasn’t an offense warranting other than an honorable discharge.  I was being charged with knowing the bomb was fake because it was a serious offense and he wanted to throw me out of the navy.  He then asked me if I had anything to say.  So I stated that I the procedure would have been the same whether or not I believed the bomb was fake and that I brought a copy of the procedure for him to review.  He was furious he shouted I know the procedure.  It was clear he didn’t care what the procedure was.

I then immediately requested a court martial.  His response was simply, “denied.” I then went on to tell him about my military record.  I explained that I had never been in trouble before I had just received my good conduct award for 2 years of honorable service just 2 months prior.  I had never been to a Captain’s Mast and furthermore I had never even so much as had and unsatisfactory inspection or PRT.  I tried to sway him by telling him that I had made e-5 by the time I was 19 years old, I was the youngest e-5 on the ship at the time.  I brought up the fact that in reactor department I had qualified all of my watches early to support the watch bill and that I was the only Second Class duty section leader in the entire reactor department.  I also emphasized that not only did I have a superior knowledge of my job by being a duty section leader but that I had also had a masterful understanding of the entire nuclear carrier by earning my enlisted surface warfare specialist qualification and was actively training my other shipmates so that they could achieve the same.

It appeared that he became more upset with everything positive thing that I had to say about myself.  When I stopped he simply said “are you done yet?” I replied yes and before I could close my mouth I heard reduction in rate 1/2 months pay for 2 months 60 days restriction and to be processed out of the navy with an other than honorable discharge.  It was the maximum penalty a captain could give and I did not receive it not for the crime that I had committed.  I later came to find out that all of the individuals involved with building the bomb and placing it on the hanger bay had gotten off on their charges at courts martial.  A bomb was placed on the ship during his watch and everyone walked.  I believe this is why it was decided to bring me to Captain’s Mast and this is why I got the maximum punishment for a crime I did not commit.

I went on to serve my time on restriction.  During that time I never was late for a muster or received anything less then an outstanding on an inspection.  Even though I knew my fate I still carried myself with dignity and performed every task that I was asked to the best of my ability.  During this time many people recommended that I appeal the captains decision, but at the time I felt as if it was pointless.  I didn’t feel that I would receive a fair trial on that ship nor would anyone even listen to an appeal.  I also took into the fact that I had a newborn at home that needed her father.  I had been locked up on that ship for 60 days and felt as if I was robbed of that part of her life.  Her mother was also in the navy and I took into consideration that someone had to be home in order to watch her while she was out to sea.  So I served my time and took my punishment in stride.  I made sure that I found out what I had to do in order to upgrade my discharge once I was out so that one day I may receive a fair trial for the events that transpired on board the U.SS. Carl Vinson.

After being discharged I immediately went out and got a job as a machinist in Todd Pacific Shipyard.  I excelled, working my way up from a machinist apprentice to a journeyman machinist in only 2 months - a task that took most individuals 3 years.  I worked diligently at my job and performed every task with pride.  I installed windows on the passenger ferries in Seattle and even went back over to the Puget Sound naval shipyard to remove repair and reinstall jet blast deflectors on board the U.S.S. Abraham Lincoln.

I worked as hard as I could until all the ships were gone and the layoff slips were handed out.  Without sufficient means to support myself my family and pay my mortgage and without being able to collect unemployment due to my discharge I was forced to sell my house and move back in with my family in New Jersey.  I went and applied as a security guard for an apartment complex in the area and after looking at my resume and training from the navy the recruiter offered me the position of head super which included a free apartment with the job.  I accepted the position but wasn’t adequately trained for it, so I began taking classes to learn the skills that I was lacking for the job.  I worked during the day and went to school at night and I earned my superintendents license in three months.  I continued to go to school at night and earned my black seal boilers license.  This allowed me to become a boiler operator.  I put in my letter of resignation once I got a job as a boiler operator; however, the company was so impressed with my mechanical and electrical skills that they allowed me to keep my apartment in exchange for working part times in the evenings there on there equipment.  I kept the job as a boiler operator for a year and then decided to make a career change in order to generate a larger income to support my family.  So I took a position as an armored car driver.  The position wasn’t one that was geared towards my naval specialized training but one that I was allowed to make a lot of money in. in this position I am trusted to deliver and pick up large sums of money and valuables.  I also am required to maintain a high level of alertness and attention to detail in order to ensure my safety and the safety of my partners.  I was only able to obtain this position by being an upstanding citizen with no criminal background, a clean driving record and the ability to obtain a New Jersey firearm carrier permit.  This position not only trusts me to deliver millions of dollars safely but also to make good decisions in carrying and handling a firearm.  I still hold this position to this day, always serving with honor and distinction.

I also want you to know that I am a God-fearing man.  While in the navy I recruited 17 people from my school for the navy.  I help coach the debate team there.  As a student I was on the team and wanted to help the students as other volunteers helped me while I was there.  I also work with orphans and the elderly through the Fraternal Order of Masons, Prince Hall affiliated.  I’ve also grown in my personal life.  I’ve gotten married and spend every available moment with my beautiful wife and my now 4 year old daughter.  I make sure we attend church services regularly so that we may grow strong in the Lord.

Although things are going well for me, I feel I need to fulfill my duty to my country and the people who paid for my training by serving honorably serving out my time in the navy.  This is a decision about pride, patriotism, and the example I want to be for my daughter.  My grandfather was a World War II veteran and my father served in Vietnam.  I can recall as a child growing up when my grandfather would tell us of his times in the army.  He was only allowed to be a cook at the time because of his race but he never let that stop him from serving proudly.  He never let anyone belittle his position; he always told me that everyone had a job to do and no one job was more important then the other.  He was just as proud as a cook then any fighter pilot could have ever been.  Getting an honorable discharge for him was one of the proudest moments of his life.  His honorable discharge was mounted on the wall in his home for all to see.  Even after he and my grandmother passed away the discharge still remains displayed proudly on the wall.  He often joked that he would haunt us if we took it down.  It serves as a constant reminder to my family that we can overcome any adversity if we stick with it and persevere.  Out of the 23 children that my grandfather and my grandmother had 13 were boys and 11 served their country proudly.  Five retired from the military and two are still on active duty.  When the family all gets together the room is full of stories from the army navy and marines.  Before me no one had ever joined the navy in my family so often they would gather around me and ask me questions and listen to my sea stories.

When I reenlisted and received my first Honorable Discharge my mother threw a big family reunion.  Everyone came out even my uncle stationed in Germany, which was a big deal because he had not been to the states in 6 years.  The family gathered around and my mother proudly hung my discharge papers on the wall right next to my fathers.  This was one of the proudest moments in my life and one that I will never forget.

I truly intended on making a career out of the navy.  My shipmates used to tease me and refer to me as “lifer lee” a title I proudly accepted.  That was until my discharge; now at family gatherings no one even mentions the military around me, and when they do it becomes an awkward situation.  I think what really hurt me the most is that my father took down my honorable discharge from the wall.  He told me it wasn’t right that it be displayed and I had not received an honorable discharge as my final discharge.  I still have it to this day, but I don’t have it displayed in my home.  I hope to one day display an honorable discharge in my home and to no longer carry the shame that comes with a other then honorable discharge.

I sincerely would like the opportunity to serve again in whatever manner my country needs me.  I’ve been monitoring the war in Iraq threw the media and I constantly hear the pleas of our government for soldiers to join up and support our war on terror.  There are talks of reinstating the draft and making people who don’t want to fight for their country go to Iraq.  I would hope that in times like theses when we all need to stick together as Americans that my past discretions can be excused so that I may join my fellow soldiers in defending democracy throughout the world.  If not needed in the navy I would be willing to serve in the Army, Marines, Air Force or Coast Guard.  I sincerely urge this board to grant my request so that I may serve my country once again with honor courage and commitment.

Sincerely, K_ A_ L_ (Applicant)”

Documentation

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

Applicant’s DD Form 214
Character reference, unsigned, dated October 26, 2004
Character reference, dated October 9, 2004
Picture of Applicant
Picture of Applicant with his parents
Picture of Applicant receiving a certificate
Picture of Applicant with his wife and daughter
Certificate of completion, dated January 29, 1998
Certificate of appointment, dated February 16, 1998
Certificate of completion, dated March 26, 1999
Good Conduct Award, dated July 15, 2000
Honorable discharge certificate, dated August 27, 1999
Certificate of appointment, dated August 28, 1999
Certificate of reenlistment, dated August 28, 1999
Certificate of completion, dated September 22, 2000
Certificate of completion, dated January 7, 2000
Criminal history background check, dated May 8, 2003
New Jersey driving record, dated May 12, 2004
Certificate of completion, dated April 2003
Boiler Operator license from the State of New Jersey, dated May 12, 2003
Sailor/Marine American Council on Education Registry Transcript of military course completions (7 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	961127 - 970715	COG
	Active:   USN 			970716 - 990827	HON

Period of Service Under Review:

Date of Enlistment:  990828		Date of Discharge:  001127

Length of Service (years, months, days):

	Active:    01  03  00
	Inactive:  None

Age at Entry:  19			Years Contracted:  6

Education Level:  12			AFQT:  86

Highest Rate:  MM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.80 (5)		Behavior:  2.60 (5)		OTA:  2.70

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM, MUC, NRMR, ESWBI

Days of Unauthorized Absence:  None

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:

990828:	Applicant reenlisted for 6 years.

000725:	U.S. Naval Criminal Investigative Service report.

001012:	NJP for violation of UCMJ, Article 134: Bomb hoax on 000605
	Award: Forfeiture of $723 per month for 2 months, restriction for 60 days, reduction to E4.  No indication of appeal in the record.

001031:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

001031:	Applicant advised of 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 and to submit a statement.

001031:	Applicant’s statement.

001105:	Commanding Officer recommended discharge by reason of misconduct due to the commission of a serious offense with the least favorable characterization of service as under other than honorable conditions.

001110:	NJP for violation of UCMJ, Article 86: Unauthorized absence 2215 restriction personnel muster on 001105.
	Award: Forfeiture of $150 per month for 1 month, restriction and extra duty for 10 days.  No indication of appeal in the record.

001113:	COMCARGRU 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 20001127 under other than honorable conditions for misconduct due to commission of a serious offense (A & 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).

Issues 1, 4.  The Applicant states his discharge was inequitable because it was based on one isolated incident in “40 months.” Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  The Applicant’s service record is marred by award of nonjudicial punishment (NJP) on two occasions for a Violation of Article 134, bomb threat or hoax, a serious offense, and a violation of Article 86, unauthorized absence, thus substantiating the misconduct for which he was separated.  Relief denied.

Issues 2-3.  There is credible evidence in the record that the Applicant committed a serious offense by making a bomb threat or hoax.  The Applicant’s statements that he “was innocent of the crime I was charged with” are not supported by the evidence of record.  The Board found no evidence of impropriety in the evidence of record nor in the documentation provided by the Applicant.  Further, the Applicant was provided the opportunity to present his case before an administrative board, but waived that right.  Relief denied.

Issue 5-7.  The Applicant’s statement that his discharge was inequitable because he “was required to pay the NAVY $45,000 for the training I received,” not permitted to reenlist and not able maintain his rank. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable.  

Issue 8.  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  

Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety 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 verifiable employment records and documentation of community service.  At this time, the applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge.  Therefore, no relief will be granted.  

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.  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 30, dated 7 Nov 00, effective 30 Aug 00 until 24 Jan 01, 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 134, threat bomb or hoax if adjudged at a Special or General Court Martial

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

E.  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