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

FOR OFFICIAL USE ONLY

   ex-AN, USN
Docket No. ND05-01132

Applicant’s Request

The application for discharge review was received on 20050629.  The Applicant requests the Discharge 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051206.  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 in lieu of a trial by court-martial.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application and attached document/letter:

“I was arrested for assult on a family member my wife and son.  I would still be in the service if not found guilty of it in a court of law.  I could of handled it better with my wife and son because we are still together.  I was discharged for UA and drug use UA because I was in jail and my command knew and did nothing.  The guys in the cell where smoking weed in the cell everynight and it was in my system so I test positive for drugs in the system.  I was almost time for me to give out and family problems messed me up they could have given my a general but wanted me to have nothing they even have me in debt for navy housing and it was suppost to be taken care of.  They just left me hanging.  I just want a better discharge, I did my duties and would still be there if not for the family problems I had.”

“My average conduct and efficiency ratings/behavior and proficiency marks were good [or pretty good].
I received awards and decorations.
I had combat service.
I have been a good citizen since discharge.
My record of convictions by civil authorities while I was in service indicates only minor or isolated offenses.
My record of AWOL/UA indicates only minor or isolated offenses.
My ability to serve was impaired by my youth and immaturity.
Personal problems impaired my ability to serve.
Certain other problems impaired my ability to serve.”

Documentation

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

Applicant’s DD Form 214
Certificate of completion of Airman Apprentice Training Course, dtd March 15, 2002
Certificate of completion of Math, English, and Reading course, dtd February 2, 2004
Certificate of completion of the PASS Program, dtd from February 11, 2002 to February 	15, 2002
Letter of Commendation
Order of Child Support (Civil), Commonwealth of Virginia, dtd May 1, 2004
Warrant of Arrest – Misdemeanor (State), dtd March 27, 2004
Four pages from Applicant service record, not previously available to the Board

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20011031 - 20011211	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20011212		Date of Discharge:  20040928

Length of Service (years, months, days):

	Active:    02  09  17  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  93 days

Age at Entry:  21

Years Contracted:  4 (12 month extension)

Education Level:  12				AFQT:  55/47

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0 (3)			Behavior:  1.7 (3)		OTA:  2.78

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Navy Expeditionary Medal; National Defense Service Medal; Armed Forces Expeditionary Medal

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

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority:  MILPERSMAN, Article 1910-106 (formerly 3630650).

Chronological Listing of Significant Service Events: 

011031:	Pre-service waiver for three dependents and 1 misdemeanor granted.

030109:	NJP for violation CHARGE I: VUCMJ, Article 86 - Unauthorized absence
Specification: In that Aviation Boatswain’s Mate. Equipment Airman Apprentice T_ T. H_(Applicant), U S Navy, USS HARRY S. TRUMAN (CVN 75), on active duty, did, on or about 1315, 17 December 2002, without authority, absent himself from his place of duty, to wit:  Supply/S-5, wardroom, and did remain so absent until on or about 1600, 17 December 2002.
CHARGE II: VUCMJ, Article 92 - Failure to obey an order or regulation
Specification 1: In that Aviation Boatswain’s Mate Equipment Airman Apprentice T_ T. H_(Applicant), U.S Navy, USS HARRY S. TRUMAN (CVN 75), on active duty, having knowledge of a lawful order issued by Mess Specialist First Class Petty Officer M_ W. B_, U.S. Navy, to work extended hours, an order which it was his duty to obey, did, on board USS HARRY S TRUMAN (CVN 75), on or about 17 December 2002, fai1 to obey the same by not working the extended hours.
Specification 2: In that Aviation Boatswain’s Mate Equipment Airman Apprentice T_ T H_(Applicant), U.S Navy, USS HARRY S. TRUMAN (CVN 75), on active duty, having knowledge of a lawful order issued by Mess Specialist First Class Petty Officer M_ W. B_, U.S. Navy, to go to work, an order which it was his duty to obey, did, on board USS HARRY S. TRUMAN (CVN 75), at sea, on or about 18 December 2002, fail to obey the same by not going to work.
Specification 3: In that Aviation Boatswain’s Mate Equipment Airman Apprentice T_ T. H_(Applicant), U S Navy, USS HARRY S. TRUMAN (CVN 75), on active duty, having knowledge of a lawful order issued by Commanding Officer, USS HARRY S. TRUMAN (CVN 75) to wit: USS HARRY S. TRUMAN (CVN 75), Instruction 2710.1B, (Policy and Guidance for Use of the Internet, Email, and Government Information Systems On USS HARRY S. TRUMAN (CVN 75), dated 19 August 2000), an order which it was his duty to obey, did on board USS HARRY S. TRUMAN (CVN 75), on divers occasions from April 2002 through December 2002, fail to obey the same by wrongfully utilizing his account for the viewing of pornographic material on a government computer.
CHARGE III: VUCMJ, Article 121 - Larceny
Specification: In that Aviation Boatswain’s Mate Equipment Airman Apprentice T_ T. H_(Applicant), U S Navy, USS HARRY S. TRUMAN (CVN 75), on active duty, did, at the Navy Exchange Norfolk, Virginia, on or about 9 October 2002, steal a pair of Air Jordan shoes, a value of $79.99, the property of the Navy Exchange, Norfolk, Virginia.
Award:  Restriction for 60 days.  No indication of appeal in the record.

030109:	Retention Warning:  Advised of deficiency (Commanding Officer’s nonjudicial punishment held on 9 January 2003 for violations of the Uniform Code of Military Justice, Article 86 - Absence without leave, Article 92 (3 specifications) - Failure to obey an order or regulation, and Article 121 - Larceny.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

030313:	NJP for violation of UCMJ, Article 86: Absence without leave
Specification: In that Aviation Boatswain’s Mate Equipment Airman Apprentice T_ T. H_(Applicant), U.S. Navy, USS HARRY S. TRUMAN (CVN 75), on active duty, did, on board USS HARRY S. TRUMAN (CVN 75), at sea, on divers occasions from 15 January 2003 until 28 February 2003, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: restricted musters.  (8 total)
	Award:  Restriction and extra duty for 8 days.  No indication of appeal in the record.

040419:	Civil Conviction:  Norfolk Juvenile and Domestic Relations District Court for violation of two counts of assault and battery.
Sentence:  Jail for 6 months and ordered to complete a domestic violence program, anger management program and parenting classes.  Jail for 3 months suspended.

040430:	Applicant in hands of civilian authorities at 1600, 040430.

040510:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by all violations of the UCMJ during current enlistment, misconduct due to commission of a serious offense as evidenced by Commanding Officer’s NJP held on 9 January 2003, and misconduct due to civilian conviction as evidenced by Norfolk Juvenile and Domestic Relations District Court Order of 19 April 2004.

040510:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

040625:	Commanding Officer, USS HARRY S. TRUMAN (CVN 75) recommended discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct, misconduct due to commission of a serious offense and misconduct due to civilian conviction.  Commanding Officer’s comments:  “AN H_ (Applicant) went to Commanding Officer’s nonjudicial punishment twice for violating several Articles of the UCMJ.  On 19 April 2004, AN H_ (Applicant) was convicted of two counts of assault and battery against his family members and he is currently incarcerated in the Norfolk City Jail.  AN H_ (Applicant)’s blatant disregard for the Navy’s rules and regulations are totally unacceptable.  His actions are prejudicial to good order and discipline and he has no potential for further Naval service.”

040629:	COMCRUDESGRU TWO directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to civilian conviction.

040701:	Applicant returned to military control at 1445 on 040701 (93 days/surrendered).  Applicant’s EAOS changed to 07 Feb11.

040913:	Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.  He consulted with counsel and was fully advised of the implications of his request.  The Applicant admitted that there was enough evidence to convict him of violating UCMJ, Articles 86 and 112a, and stated that he understood the elements of the offense(s) with which he was charged.  The Applicant stated he was completely satisfied with the counsel he had received. The Applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veterans' benefits based upon his current enlistment, and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing.  [Extracted from supporting documents submitted by the Applicant.]

040915:	Commanding Officer, Transient Personnel Unit Norfolk, forwards the Applicant’s request for administrative discharge in lieu of trail by court martial, to Commander, Navy Region, Mid-Atlantic, recommending approval. [Extracted from supporting documents submitted by the Applicant.] 

040921:	Commanding, Navy Region, Mid – Atlantic, exercising GCMCA, approved the request for an administrative separation in lieu of a trial by court-martial, and directed Applicant’s discharge.  [Extracted from supporting documents submitted by the Applicant.]

Service Record contains a partial Administrative Discharge package. 

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040928 in lieu of a trial by court-martial (A and B) with a service characterization of under other than 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 Board presumed regularity in the conduct of governmental affairs (E).

In a signed statement, the Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.  He consulted with counsel and was fully advised of the implications of his request.  The Applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veterans' benefits based upon his current enlistment, and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received there from may have a bearing.  The Applicant stated he understood the elements of the offenses with which he was charged.  He admitted he was guilty of violating Articles 86 and 112a of the UCMJ.  Relief denied.

When the service of a member of the 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 2 nonjudicial punishment proceedings for violations of Articles 86 (UA), 92 (Failure to obey an order) and 121 (larceny) of the UCMJ. In addition, the Applicant was arrested by civil authorities for 2 counts of assault and battery and was incarcerated for 93 days.  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 Applicant states that his record of service included good evaluations, awards and decorations, and that he had combat service.  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 admitted that he used illegal drugs.  Mandatory processing for separation is required for sailors who abuse illegal drugs.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  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.  Relief denied.

The Applicant contends that his problems in the Navy can be attributed to his youth, immaturity, and personal problems.  While he may feel that these reasons were the underlying causes of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The Applicant states that he has been a good citizen since 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 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, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any post-service documentation for the Board to consider.  Relief denied.

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), re-issued October 2002, effective 22 Aug 2002 until 30 May 2005, Article 1910-106 (formerly 3630650), SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

B.  A punitive bad conduct discharge may be adjudged for violation of the Uniform Code of Military Justice, Article 92, failure to obey other order, and Article 112a, wrongful use of controlled substances.

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.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.  

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