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

FOR OFFICIAL USE ONLY

  ex-BUCA, USN
Docket No. ND05-01510

Applicant’s Request

The application for discharge review was received on 20050913.  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 designated the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060619.  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 General (Under Honorable Conditions) by reason of misconduct due to civilian conviction.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

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

“I respectfully request a discharge upgrade and my code changed so I have the option to go into the Reserves.  I was wrongfully accused of a crime out in town. I had no military liaison with me in court and did not know what to do so I made the best judgment I knew.  I went in front of an admin board and was at first found not guilty of all three counts then it was turned around to guilty because I was convicted out in town.  Attached is everything I was able to get from my JAG officer.  My command recommended retention!  The ultimate decision came for Secretary of the Navy for my discharge.

My father retired in 2001 and moved down to Pensacola Florida with my sister so he could be closer to the family.  In April 2002, he was admitted to a mental hospital in Pensacola Florida.  Six months later, he was released from West Florida Community Care Center with a diagnosis of bipolar and psychotic schizophrenia. In September 2002, he was released and I moved him into my apartment in Gulfport.  The doctor stated he needed supervision so he would take his medication.  I informed him drugs are not tolerated in the house.  I explained to him if I found them he would have to move out.  He was progressing well for several months then he started acting mentally sick and I suspected he was using marijuana.  In April 2003, I went to the Gulfport Police Department and asked if they could search my apartment for drugs.  The detective I spoke to said they couldn’t go in his room without a warrant and the only option is for him to move out.  The next day, I found the marijuana in his room and told him he had to move out.

He was living out on his own for a week in May 2003, when his first bill collector called.  I went to his apartment and confronted him about his financial situation and realized that he needed to go back into the hospital.  The next day, I took off of work and went down to the courthouse and had him committed to Crisis Stabilization Unit. The first time, I went into his apartment to look for his keys, wallet, and glasses.  The door was unlocked and I walked in.  Sitting on the kitchen table, I observed a large quantity of marijuana.  I could not find the items so I took his cat and some pop out of the fridge and left leaving the door unlocked.  The second and third time I returned to his apartment to get some of his personal things for him, which was the last time I was in the apartment.

In May 2003, Gulfport Police Department asked me if they could search my apartment and my vehicles for drugs and I let them without a problem.  They found nothing.  They asked me questions and I answered them in an honest and respectful manner.  After their short investigation, they arrested me for possession of marijuana.  My bond was set for ten thousand dollars and I posted the next day with Bear Bonding co.  I seen several lawyers out in town about the situation but I could afford none of them so I filed for a public defender.

I went to court on the 08 January 2004 and my public defender advised me to plead guilty and they would drop to a misdemeanor.  So all I had to do was pay fines, court costs, and surrender my license for six months, which sounded like a pretty good deal to me.  I wasn’t aware of the military consequences because all legal said they could advise me on when I was arrested was not to say anything without a lawyer present.  I knew that if I were convicted with a felony my military career would be over.  That’s what I was trying to avoid.

Now the military wants to discharge me because of the drug misdemeanor out in town.  I would like to stay in the navy and I know about the zero tolerance on drugs but why should I be punished for my family’s actions?  Can Congressman P_ V_ help me with this situation? He is my only hope.  I want to stay in but if I have to get out I want out on honorable terms so I can go to the veterans affairs and get fixed, and so I can go to college.  My administration board is the 18th of this month.  Thank you for your time,

Sincerely,
B_ K_”

Representative submitted no issues.

Documentation

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

Letter from T_ K, Applicant’s father, undtd
Character Reference ltr from D_ A_ S_, dtd April 13, 2004
Character Reference ltr from D_ M. J_, Applicant’s mother, dtd, April 19, 2004
Character Reference e-mail from F_ K_, dtd March 5, 2004
Character Reference ltr from D_ B_, undtd
Affidavit of D_ L. P_, dtd March 11, 2004
Letter to Applicant from Member of Congress, dtd June 1, 2004
Letter to Captain D_ L_, Director, House Liaison from Member of Congress, dtd June 1, 2004
Letter to Applicant from Member of Congress dtd April 29, 2004
Letter from W. C. M_, Captain, Civil Engineer Corps, dtd April 19, 2004
Letter from E. A. C_, dtd March 23, 2004
Letter to Applicant from Member of Congress, dtd September 9, 2004
Letter from W. C. M_, Captain, U.S. Navy, dtd September 1, 2004
Court papers, dtd January 8, 2004 (9 pages)
Lease agreement, dtd May 6, 2003
Apartment Lease Contract (5 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19990913 - 20000706	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20000707		Date of Discharge:  20040827

Length of Service (years, months, days):

	Active:    04 01 21
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  19

Years Contracted:  4 (12 month extension)

Education Level:  12				AFQT:  56

Highest Rate:  BUCN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NA*				Behavior:  NA*		OTA:  NA*

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

* Not Available

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MILPERSMAN, Article 1910-144 (formerly 3630610).

Chronological Listing of Significant Service Events: 

010921:	Medical evaluation by D_ A. B_, PhD, Capt, MSC, USNR, Clinical Psychologist.
	Assessment:
	AXIS I: Adjustment disorder with disturbance of emotion and conduct
AXIS II: R/O personality disorder not otherwise specified.
	AXIS III: S/P post surgery right foot.
	AXIS IV: Current:  55.  Best:  75.
	Plan: 1. F/U here next week for crisis intervention/counseling.  2. Pt to contact FSC for financial counseling.  3.  Pt to call Navy Campus re: educational option.

011031:	NJP for violation of UCMJ, Article 86: Unauthorized absence
	Specification 1: In that Builder Constructionman Apprentice B_ B. K_(Applicant) U. S. Navy, Naval Air Station, Pensacola, Florida, on active duty, did, on or about 13 September 2001, without authority, absent himself from his organization, to wit: Naval Air Station, located at Pensacola, Florida, and did remain so absent until on or about 18 September 2001.
	Specification 2: In that Builder Constructionman Apprentice B_ B. K_(Applicant) U. S. Navy, Naval Air Station, Pensacola, Florida, on active duty, did, on or around 0845, 24 October 2001, without authority, absent himself from his organization, to wit: Naval Air Station, located at Pensacola, Florida, and did remain so absent until at or around 0930, 24 October 2001.
Violation of UCMJ, Article 91: Insubordinate Conduct toward a Petty Officer
Specification: In that Builder Constructionman Apprentice B_ B. K_(Applicant) U. S. Navy, Naval Air Station, Pensacola, Florida, on active duty, did, on or about 24 October 2001, was disrespectful in language toward Postal Clerk Second Class R_ E. Y_, U.S. Navy, a petty officer, then known by said Constructionman Apprentice K_(Applicant) to be a superior petty officer, who was then in the execution of his office, by saying to him, “F--- you, you f------ faggot,” or words to that effect.
Violation of UCMJ, Article 92: Failure to obey a lawful order
Specification 1: In that Builder Constructionman Apprentice B_ B. K_(Applicant) U. S. Navy, Naval Air Station, Pensacola, Florida, having knowledge of a lawful order issued by Engineering Aide Third Class O_ D. T_, U.S. Navy, to get out of the shower and put his uniform on, an order which it was his duty to obey, on active duty, did, at or near Naval Air Station, Pensacola, Florida, on or about 24 October 2001, fail to obey the same.
Specification 2: In that Builder Constructionman Apprentice B_ B. K_(Applicant) U. S. Navy, Naval Air Station, Pensacola, Florida, having knowledge of a lawful order issued by Postal Clerk Second Class R_ E. Y_, U.S. Navy, to stand at attention, an order which it was his duty to obey, on active duty, did, at or near Naval Air Station, Pensacola, Florida, on or about 24 October 2001, fail to obey the same.
Specification 3: In that Builder Constructionman Apprentice B_ B. K_(Applicant) U. S. Navy, Naval Air Station, Pensacola, Florida, having knowledge of a lawful order issued by Postal Clerk Second Class R_ E. Y_, U.S. Navy, to clean his room, and order which it was his duty to obey, on active duty, did, at or near Naval Air Station, Pensacola, Florida, on or about 24 October 2001, fail to obey the same.
Violation of UCMJ, Article 107: False official statement.
Specification: In that Builder Constructionman Apprentice B_ B. K_(Applicant) U. S. Navy, Naval Air Station, Pensacola, Florida, on active duty, did, at or near Naval Air Station, Pensacola, Florida, or about 24 October 2001, with intent to deceive, make to Postal Clerk Second Class R_ E. Y_ U. S. Navy, an official statement, to wit: “I took off my clothes to clean the showers, not to take a shower,” or words to that effect, which statement was totally false, and was then known by the said Constructionman Apprentice K_(Applicant) to be so false.
Violation of UCMJ, Article 128: Assault upon a Petty Officer
Specification: In that Builder Constructionman Apprentice B_ B. K_(Applicant) U. S. Navy, Naval Air Station, Pensacola, Florida, on active duty, at or near Naval Air Station, Pensacola, Florida, on or about 24 October 2001, assault Engineering Aide Third Class O_ D. T_, U.S. Navy, who then was and was then known by the accused to be a petty officer of the United States Navy, by pushing him twice.
	Award:  Forfeiture of $584.55 per month for 1 month, restriction and extra duty for 45 days.  After CCU need to get him into Anger Management Classes.  No indication of appeal in the record.

011113:	Retention Warning:  Advised of deficiency (CO’s nonjudicial punishment on 31 October 2001 for VUCMJ Article 86 - 2 specifications of unauthorized absence, Article 91 - Insubordinate conduct toward a petty officer, Article 92 - 3 specifications of failure to obey a lawful order, Article 107 - False official statements, and Article 128 - Assault upon a petty officer.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

020725:	Retention Warning:  Advised of deficiency (VUCMJ, Article 86: Unauthorized absence, VUCMJ, Article 91: Disrespect towards a petty officer, and VUCMJ, Article 128: Assault.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

030826:	Non-Medical assessment: Commanding Officer’s Comments: It is unfortunate that some personnel are not willing to conform or adjust to the military way of life.  BUCN K_(Applicant) has been a complete administrative burden on this command and the Navy, and continues to display a lackadaisical attitude.  In the short time he has been in the Navy, he has had an NJP and requires constant supervision.  His medical condition prevents him from participating in the Navy’s Physical Fitness Assessment program, and from working in his military occupational field.  I most strongly recommend separation.

040108:	Civil Conviction:  Justice Court of Harrison County, Mississippi First Judicial District for violation of possession of marijuana.
Sentence:  Driver’s license suspended for 6 months.  [Extracted from supporting documents provided by the Applicant.

040128:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct-civilian conviction and misconduct due to drug abuse.

040128:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

040427:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct-civilian conviction and misconduct-drug abuse, that such misconduct warranted separation, and recommended retention.

040603:	Commanding Officer, TWENTIETH Seabee Readiness Group forwarded the discharge processing to Commander, Navy Personnel Command (PERS 4832) recommending retention.  Commanding Officer’s comments:  “BUCA K_(Applicant) was found guilty due to his pleas in a civilian court of law.  Pursuant to the MILPERSMAN, his guilty plea was binding on the administrative board.  However, the administrative board did not feel that he had committed the misconduct and recommended retention.  Due to the fact this is a mandatory processing case, I am forwarding it for final disposition.  I concur with the findings of the administrative board and recommend retention for BUCA K_(Applicant).”

040614:	Commander, Naval Personnel Command recommended to Assistant Secretary of the Navy (Manpower and Reserve Affairs), Applicant’s discharge with a general (under honorable conditions) by reason of misconduct due to civilian conviction.

040810:	Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved recommendation for discharge with a general (under honorable conditions) by reason of misconduct due to civilian conviction.

040816:	CNPC directed the Applicant's discharge with a general (under honorable conditions) by reason of misconduct due to civilian conviction.

*Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040827 by reason misconduct due to civil conviction (A and B) with a service characterization of general (under honorable conditions).  After a thorough review of the available 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 contends that he was wrongfully accused of a crime out in town. He further contends that due to lack of finances and no military liaison, he accepted his public defender’s advice to plead guilty, pay fines, court costs, and surrender his license for six months, to secure a reduced charge (misdemeanor). Applicant also states he wasn’t aware of the consequences that these decisions would have on his military associated career. The NDRB advises the Applicant that his self-admission and guilty plea for possession of marijuana in a civil court is considered as “wrongful use of a controlled substance” punishable under the UCMJ, Article 112a.  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. Additionally, 2 retention warnings and 1 nonjudicial punishment proceeding for violations of UCMJ Articles 86 (absent without leave), 91(disrespectful language), 92 (disobeying a lawful order/ 3 specs), 107 (false official statement) and 128 (assault) marred the Applicant’s service. The NDRB advises the Applicant that certain serious offenses warrant separation from the Navy in order to maintain proper order and discipline. Violations of Article 86 and 91, 92, 107, and 128 are considered serious offenses and typically warrant a punitive discharge if adjudged at a special or general court-martial. 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 implies that he should not have been separated based on the command and administrative board’s recommendation that he be retained. The NDRB advises the Applicant that although the administrative board and the command recommended retention, MIPERSMAN 1910-600 states all cases where an administrative board is held must be forwarded to the Separating authority for review. Additionally, if an administrative board by preponderance of the evidence supports one or more reasons for separation, recommends retention, and the case, is a mandatory processing case, it must be forwarded to Commander, Navy Personnel Command (COMNAVPERSOM). If COMNAVPERSOM modifies the recommendation and recommends separation, it must forward its recommendation to the Secretary of the Navy for final disposition. In the Applicants case, the Assistant Secretary of the Navy (Manpower and Reserve Affairs) who has as one of his responsibilities, overall supervision of manpower of the Department of the Navy, including policy and administration of affairs related to military (active and inactive) and civilian personnel, had the authority to make a definitive determination on retention and characterization of service. Assistant Secretary of the 
Navy (Manpower and Reserve Affairs) concurred with COMNAVPERSOM and directed that the Applicant be separated with a general (under honorable conditions) by reason of misconduct due to civilian conviction. The NDRB found no evidence of impropriety or inequity in the Applicant’s discharge.  

The Applicant request a “discharge upgrade and code change, so he may have the option to go into the Reserves”. 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.

The Applicant requests an upgrade “on honorable terms so I can go to the veterans affairs and get fixed, and so I can go to college”.  The Board advises the Applicant that the Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  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.  

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 additional evidence related to this discharge.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 02 until 28 April 2005, Article 1910-144 (previously 3630610), Separation by Reason of Misconduct - Civilian Conviction. 

B.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 112a (wrongful use of a controlled substance).

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.

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