Author: CAP
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Docket No. ND02-00906

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

 ex-SR, USN
Docket No. ND02-00906

Applicant’s Request

The application for discharge review, received 020610, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a personal appearance discharge review before a traveling panel closest to Grand Rapids, MI or Detroit, MI.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter to the Applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington, D.C. area.  The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030311.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the Applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I received a general discharge.  More than anything I was not a general sailor.  I served my time with honor, courage, commitment, but my ship seemed to be more honor, courage, & politics  Thank you.

2.  Sirs:

This letter is in regards to the boards request for records of my discharge from the U.S. Navy on September 7th, 2001.  I have not now nor never have had any of my medical, dental, or personal records when I was TAD to the U.S.S. Grasp.  To my knowledge my records never followed me to the Grasp.  When I did return to the U.S. S. Seattle (AOE-3) I was treated like a deserter, who had come back.  I returned on September 7th at about 1300 hours, I spoke to a LNC who told me there was "no charges' pending or reason for my discharge.

By 1700 I still had no rack assigned to sleep on, no division to report to or knowledge of what was going to happen to me.  At 1800 I was called to the personal office over the 1 mc, LNC told me that I was receiving a "General Discharge".  I was shocked, Pn A_ explained to me that I still would be entitled to receive my G.I. Bill and VA benefits, that it was the same as an Honorable Discharge.  When I asked to speak to a representative from the J.A.G.'s office, he said no and told me that the Captain, whom I had never met, said I was not to sleep another night on that ship.  I called my parents, who advised me to try to speak to someone but by this time all the offices on the base were closed.  I never filled out a check sheet for medical, dental or any other personal papers.  I had paid into my G.I.Bill so I wanted to make sure I still received those benefits.  MMC B_ also told me that I still would receive all the benefits that I had paid into and for which I was entitled.  I continued to request help or representation and was refused at each request, and they kept telling me to sign the discharge papers, and depart the ship.  Finally they called the Security Alert Team to the personal office.  At which time I felt I had no choice in the matter but to do as I was instructed.

I had no charges pending, they couldn't tell me this at 1300 when I checked aboard the Seattle, when I asked about my "A" school I was told that I would not have to repay the bonus, and I would receive another payroll check and separation check, as well as being reimbursed for travel back to my home in Michigan.  Since then I have been informed that I must repay the Dept of the Navy the $3500.00 bonus, that I am not entitled to any of the benefits of the G.I.Bill, and I have never been paid for the travel expenses, after returning the necessary documentation.  And as of this date I have not received my W-2's for the fiscal year 2001 after making many phone calls to the fiscal department of the Navy.

Gentlemen, I served my tune with honor, courage, and commitment on board the U. S.S. GRASP, I was contemplating going to dive school.  QMCM (MDV) S_ told me I was a good sailor, so did my Chiefs aboard the Seattle.  I had the most qualifications in my division before the other sailors.  I was put in charge of Evolutions over BM3's.  I stuck it out when other sailors went U.A. (unauthorized leave of absence) then when they came back would receive a N.A.M's.

There is a lot of politics in the Navy when I look back at it, but I tried and did carry myself with Honor.  I looked after my shipmates and did things for them to make it fair for my dock department "monkeys" as we were called, HTC (DV) B_ told me to always stand up for what I believed in while I was in boot camp.  The sailors creed state "I BELIEVE IN JUSTICE AND FAIR TREATMENT FOR ALL"

On September 7th, 2001 after being "bullied" off the ship at 2100, I slept at the train station on the ground using my seabag as a pillow.  As it was in the middle of a payperiod for an E-2 it is tough, I had not funds for a room and the next day I took a train home.

The time I spent in the Navy taught me a lot; I have become more self reliant, confident and productive.  But I am greatly disappointed the treatment I received from the officers and crew of the Seattle.  I feel I was denied my legal rights under the Uniform Code Of Military Justice, those rights that I was entitled to as a member of the U.S. Navy.
It doesn't seem correct that I should have to provide documentation from my enlistment.  I would therefore request all copies of my personal records, especially pertaining to my discharge, under the "Freedom of Information Act." and if there is no records to affirm the Navy's charges or lack there of I request that my "General Discharge" be over turned and be issued an "Honorable Discharge".  That I be relived of any repayment of the enlistment bonus and release of my W-2's from the Navy.

Gentlemen I thank you for the opportunity to present my case to you and hope you can give me the justice denied by the Seattle.

I am at this point also requesting that my parents, J_ W. L_ and P_ L_ be allowed to act on my behalf and answer future requests from your good offices.  This due to my current employment which requires me to be out of the state and away from home most of the week.

Thank you

Documentation

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

Applicant's DD Form 214 (2 copies)
Letter to Secretary of the Navy from Applicant, dated March 29, 2002
Character reference, undated
Character reference, undated
Character reference, undated
Unofficial Undergraduate Academic record, winter semester 2002
Character reference, undated
Letter from Applicant, dated September 28, 2002

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	000118 - 000123	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  000124		Date of Discharge:  010905

Length of Service (years, months, days):

	Active:    01  07  12
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  11			AFQT:  53

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF*		Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  NER

Days of Unauthorized Absence:  None

*No Marks Found in the service record.

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

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

Chronological Listing of Significant Service Events:

010330:	NJP for violation of UCMJ, Article 117: Wrongful use of provoking words, violation of UCMJ, Article 128 (3 specs): Assault consummated by a battery, violation of UCMJ, Article 134: Disorderly conduct.
	Award: Forfeiture of $584 per month for 2 months, restriction and extra duty for 45 days, reduction to SA.  No indication of appeal in the record.

010330:	Retention Warning: Advised of deficiency (On 30 March 2001, received nonjudicial punishment for violation of the UCMJ, Article 117, provoking words; Article 128, three specifications of assault; and Article 134, disorderly conduct), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

010510:	NJP for violation of UCMJ, Article 91: disobedience of a lawful order; and disrespectful in language and deportment towards a Chief Petty Officer, violation of UCMJ, Article 92: dereliction of duty, violation of UCMJ, Article 128: assault consummated by a battery.  [Extracted from retention warning dated 010510.  No further information found in service record.]

010510:	Retention Warning: Advised of deficiency (On 10 May 2001, received nonjudicial punishment for violation of the UCMJ, Article 91, disobedience of a lawful order; and disrespectful in language and deportment towards a Chief Petty Officer, Article 128, assault consummated by a battery; and Article 92, dereliction of duty), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
	
010905:	DD Form 214: GENERAL (UNDER HONORABLE CONDITIONS)/ MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-142.

Discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 010905 under honorable conditions (general) for misconduct due to 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).

Issues 1 and 2.  There is no evidence in the official record, nor did the Applicant provide any certifiable documentation that his chain of command and shipmates treated him in a manner that  mitigates his misconduct to a degree that would warrant an upgrade to his characterization of service.  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 and adverse counseling entries on other occasions.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his 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 would be inappropriate.  Relief denied.

The Applicant may write to the National Personnel Records Center (Military Personnel Records) 9700 Page Ave, St. Louis  MO 63132-5100 to request copies of his service records.  The Board has no authority to provide relief of payments due or to provide copies of W-2 Statements.

The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident during the Applicant’s enlistment.  Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, for good conduct in civilian life, or to provide eligibility for veterans’ benefits subsequent to leaving the service.  Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his 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 31, dated 20 Feb 01, effective 25 Jan 01 until 21 Aug 02, Article 1910-142  [formerly 3630605]. SEPARATION 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

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX:  A6730/A9401/A9217/A9223/A9229