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Docket No. ND02-00967

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

ex-SR, USN
Docket No. ND02-00967

Applicant’s Request

The application for discharge review, received 020625, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to convenience of the government RE-1.  The applicant requested 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 030331.  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: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Pattern of Misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

I joined the United States Navy at age after being Delayed Enlistment Program for almost a year in 1992.  Ten years have past and I am requesting that the Dept. of the Navy upgrade my discharge from Other Than Honorable to Honorable.  I am asking that the Board consider my request based upon these issues:

- I have been a loyal American since the discharge
- I my ability to serve was impaired by my youth and immaturity
- I have been a hardworking and productive citizen since the discharge
- I was mislead by my recruiter before entering the service
- I was only in the Navy from June 3, 1992 to January 26, 1993 (I officially left the base in early December of 1992 and received the DD 214 in the mail while I was back at home in Shreveport, La), * a litter over 6 months *30 days in Brig
- I would like to get a job working for the federal government someday

Toward the end of 1990 I was a troubled teen in high school headed nowhere fast.  I was constantly suspended from school for disciplinary problems and I was failing the majority of my courses.  It was then that a friend from R.O.T.C. class had joined the delayed enlistment program.  I too called a recruiter and inquired about the program.  About a month later the called me and said that I qualified for the program.  I then told him that I probably wouldn't have the high school credits to graduate with my class in May of 1992.  the recruiter then explained to me that if I really wanted to join the Navy.  I could dropout, take the G.E.D., and accumulate at least 15 hours of college courses I could join with my A.S.V.A.B scores.  He also told me that if I could score at least at 21 on the A.C.T. exam he could get me into the B.O.O.S.T. program.  The program would allow me to go to any state funded school for 4 years and the Navy would pay for it.  After graduation I would owe the Navy 5 years as an officer.

I would have gone to basic training for 2 months and then started school that fall.  In 1992, I completed 15 hours of college classes.  I took the A.C.T. three time and scored a 19, a 20, and another 19.  I never got the 21 but the recruiter told me that he could waive that requirement because he thought I had the talent to be in the program.  A couple of days before I was to go to the M.E.P.S. station to enlist I was told by my recruiter that my application for the Boost program was denied.  I was told by my recruiter to just go in as an enlisted man.  I agreed because I really wanted to be in the Navy.  As I can remember, basic training was a positive experience.  After 10 weeks of boot camp in Great Lake, ILL I graduated and went to Meridian, MS for A school (I spent 10 weeks in boot camp instead of 8 because I was selected to be a special 900 company that performed in the graduation ceremony).
After a week in A school I had gotten into trouble.  In storekeeper class after a five minute break about five of us were called to the front of the classroom and we were told we had left our microfiche machines on and we needed to apologize to the rest of the class for wasting the light bulbs in the machine and electricity.  We were also told to write a paper on "why we didn't follow instructions" from the instructor.  We had been told earlier that day to make sure we turned off our machines and the end of everyday, but this was the middle of the day after a 5 minute break.  The other people apologized and one by one were able to sit back down.
I then told the instructor that we were only told to turn off the machines at the end of the day and I couldn't write the paper because I hadn't done anything wrong.  I was sent to the officer in charge and was put on 1 or 2 weeks restricted duty for disobeying a directive.  While on restriction I spoke with an educational advisor and he told me that the B.O.O.S.T. program that I had thought I applied to while in the delayed enlistment program had never received my application for admission.  Upset, I broke restriction twice and after the second time I was sent to Captains Mast where I tried to explain my story going all the way back to when I was mislead by my recruiters.  I asked the Captain to release me from the Navy and he agreed to discharge me but only after I spent 30 days in the B.R.I.G..
Withhindsight I have learned that in real life though my actions were justified in my own eyes they probably hindered me from accomplishing the goal, which was to see the world and acquire my degree.  After my discharge I worked on a commercial fishing vessel off the coast of Alaska and I have continued to pursue my bachelors degree.  To date, I have approximately 60 hours of study to completion.  In 1997, I left Shreveport, La and moved to Dallas, Tx. For better job opportunities.  I have worked as a ramp service clerk for an airline and a security guard at night in an office building.  Two years ago I became a skilled proofreader and worked for the yellow pages.  I am also a licensed pest control technician.  On April 13^th of this year I took the test to become a foreign service officer and I hope that I passed because it would be a lifetime opportunity.  The truth of the matter is that whatever obsticles were placed in my way I was not mature enough to overcome then because I lacked the wisdom to deal with the situations.  I didn't fully understand the consequences of my actions back then and I pray for understanding and compassion from the Board.  At the age 18, I failed to comprehend how important our national defense is and the role I was to play as a U.S. soldier.  Today I understand (having a better view of the world) our place and I am prouder now than ever to be an American.

Documentation

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

Employment Reference Letter
Parent Pass
Certificate of Qualification (Dispense Alcoholic Beverages)
Whelan Security Identification Card
American Eagle Identification Card
Undergrad Identification Card from University of New Orleans
United Parcel Service Identification Card
Foreign Service Written Examination Invitation for the Secretary of State of the United States of America
Copy of Envelope form U.S. Department of State
Certificate of Outstanding Achievement
Transcript from University of New Orleans
Transcript from Bossier Parish Community College
Letter of Acceptance into Organizational Management Program at Paul Quinn College 2001
Military Training Certificate (3 years of instruction in the Junior Reserve Office Training Corps) 
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	910620 - 920602	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  920603		Date of Discharge:  930126

Length of Service (years, months, days):

	Active:    00  07  00
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  11			AFQT:  69

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NOB		Behavior:  NOB		OTA:  NOB

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Pattern of misconduct, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

921002:	NJP for violation of UCMJ, Article 86: Unauthorized absence from unit. 
	Award:  Forfeiture of $100.00 pay per month for 2 months, restriction and extra duty for 15 days.  No indication of appeal in the record.

921005:	Retention Warning from [Naval Technical Training Center, Meridian]:
  Advised of deficiency [Your conduct, military bearing, attitude, and appearance is unacceptable and will not be tolerated.  Areas that are noted are: lackadaisical attitude toward command and policies, unethical conduct and lack of integrity.  Persisting to conduct yourself in a manner that is detrimental to good order and discipline as evidenced by your displayed contempt toward staff members and lack of respect for rules and regulations will result in disciplinary measures], notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

921021:	NJP for violation of UCMJ, Article 86: Unauthorized absence from unit, violation of UCMJ Article 134: Breaking restriction.
Award:  Forfeiture of $300.00 pay per month for 2 months, restriction and extra duty for 30 days.  No indication of appeal in the record.

921102:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86.
	Specification: Unauthorized absence.  Charge II: violation of the UCMJ, Article 134. Specification: Break restriction.
	Finding:  to Charge I, II and the specifications thereunder, guilty.
	Sentence:  Confinement at Hard Labor for 1 month, forfeiture of $585.00 pay per month for 1 month, reduced to E-2.
	CA action 921130:  Sentence approved and ordered executed.

921208:	[Naval Technical Training Center, Meridian] notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by all punishments under the UCMJ in your current enlistment.

921209:	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.

921229:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  Commanding Officer’s comments (verbatim):  [ST L_ (Applicant) received three non-judicial punishments in four months.  He was given numerous opportunities to prove his obvious potential, but consistently displayed an extreme lack of personal self-discipline.  His conduct indicates that he harbors attitudes seriously at variance with Navy principles of good order, discipline, and reliability.  Based on the foregoing and in accordance with NAVMILPERSCOMINST 1910.1D, it is recommended that he be discharged from the naval service with an other than honorable discharge.]

930114:	BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 930126 under other than honorable conditions for misconduct due to a pattern of misconduct (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).

Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the Applicant’s enlistment.  The Board found the Applicant’s age, education level, and test scores qualified him for enlistment.  While he may believe his youth and immaturity contributed to his actions, the Applicant’s service record is marred by award of two non-judicial punishments (NJP) and a summary court martial thus substantiating the pattern of misconduct. The Applicant’s summary of service clearly reflects his disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service.  Furthermore, the record is void of any evidence his recruiter misled the Applicant or that he was treated unfairly by his command.  An upgrade to honorable conditions would be inappropriate.  Relief denied.

The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in the issue.  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 considered the Applicant’s discharge proper and equitable.   Relief denied.  

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 the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  Evidence of continuing educational pursuits, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.   At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.  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 additional 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 15560C, effective 15 Aug 91 until 
04 Mar 93), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – A PATTERN OF MISCONDUCT. 

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:  A6710/A9301/A9453/A9301/A9217/A9223/A9225/A9221