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Docket No. ND03-00576

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

ex-FTSA, USN
Docket No. ND03-00576

Applicant’s Request

The application for discharge review was received on 20030221.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions and the reason for the discharge be changed to hardship.  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation from the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040205.  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 and reason for discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “Sir or Ma’am,

I am writing this to shed light on some of the issues surrounding my discharge from the Navy. When I graduated boot camp I received a command advance from my CC. how ever after being transferred to New London, CT. I found that I was still being paid E-2 wages. When I went to my command about it they said they would look into it and I never heard any thing back. At about the same time (within the first week of being at the base) I came back to my bunk and locker in open barracks and found that the back of my locker had been broken out and most of my personal non-military belongings were missing. I went to the barracks chief and he called shore patrol to come and look at things. The personnel who came to “investigate” told me I was a liar and I stole my own belongings. They barracks chief informed them that the locker was not that way when I checked in a few days before and I was on a work detail all day prior to this incident. I was then taken to the S.P. head quarters and talked to the people who would be handling my case. They again told me I was lying because my bunk was on the same floor as the barracks chief and he would have heard something. At this point I informed them that the person who had the bunk next to mine had been moving all day so maybe any noises were just associated with that. Then I gave them the name and social of the person who had moved and I believed could at least say if he saw any thing. I never heard back again from S.P. ... this was my first week actually in the Navy. I then went to my FT schooling and my record will indicate did quite well. How ever while in “C” school I was involved in an auto accident where my car flipped 7 times and I went through my T-tops. I contacted the O.O.D. and let him know what hospital I was in. He called back and verified that I was indeed there and asked me what my plans were. I informed him that my fiancé and her parents were on their way and I was going to be going back to Chambersburg PA with them. I was told to check in the next day and let them know how I was feeling and when I was expecting to return. I did what I was told and informed them I was stiff and in a lot of pain and would be leaving Wed. morning (2 days after getting out of the hospital) by train and would be arriving late after noon the same day. Wed. morning I received a phone call at my fiances house from my chief and he told me I “was AWOL and to have my ass in his office as soon it got on the base”. When I showed up that afternoon and went to his office he told me that I going to NJP because I was AWOL and went 30 miles out of range on a two day weekend. I informed him of the conversations with the O.O.D. and that my instructors knew where I was going and had no problem with it. I was then told that it did not matter and that he only signed a chit for me to be gone until Tuesday regardless of what I was told by anyone else. I asked if I was supposed to report to medical and have them look at me and he said no. Two weeks later I went to medical to have the stitches removed from my head and the chief at medical told me he was going to send me to NJP because I did not report to him when I got back to base. I informed him that my chief told me not to and he decided to let it go. Soon there after I went to NJP and received two weeks restriction and extra duty. In the meantime I was informed that since I had blacked out in the car accident that I was disqualified form anything but a desk. I also started getting light headed during PT which was unusual because I had been running 15 miles a day and was one of the best runners in the entire FT pipeline. I was put on heart monitors several times, given stress tests, had ultrasounds and EKG’s done yet none of the doctors had a clue what was wrong. I was very concerned about this because my dad suffered a heart attack earlier that year. Later on I was given a 3 day liberty chit by my instructor and when I returned I had a message from my chief telling me to report to his office. I went to his office and he informed me that I was AWOL for a day and would be going to NJP. I showed him the liberty chit and he told me that my instructor was not authorized to give those out and I was still AWOL. He then went and yelled at my instructor for giving me the chit and my instructor then started taking it out on me by making me have daily inspections and with his general attitude. Prior to this incident he had put in my file that I was “the best FT he has seen come through the pipeline” and I was ranked number 2 overall in my class. After being told that I was again going to be masted for AWOL I went to the base Chaplin and told her everything that had been going on since I arrived at the base. She must have talked to some one because the request for NJP “disappeared” after my chief handed it in. Upon completion of "C" school I found out that I had lost a brother and a sister due to a late labor miscarriage and was upset by it. That next weekend I went to surprise my fiancée and instead found her sleeping with another guy. At that point I did in fact go AWOL. I drove around the eastern US just thinking. I returned to the base and turned my self into the medical staff and told them what had been going on and asked them for help. They sent me to see a councilor and told me they would help me write a letter to the CO for my upcoming NJP. I had been talking to CWO3 S_ about financial problems and told him about all the things that were going on. He asked me what I wanted to do and I told him that I wanted out, that there was no support from anyone at the base for any of the problems that I had been having prior and that no one seemed to eager to help now. He told me that he would be there at the mast and he would put in a good word for me, that I didn’t have to throw away my career because of this. So I started thinking that I had a chance, maybe things can be worked out and it would all be ok in the end. However when we got to mast he did just the opposite and my chief finished me off by saying that I was a trouble maker and had been to NJP 4 times already and he just wanted me gone. So I got discharged, general OTH. I made a lot of mistakes especially in the end and I have no excuse and try to make no excuse for it. I was young and not emotionally able to handle the situation I found my self in and just panicked. I have regretted that for the last 5 years and now that I am older and more mature wish I had it to do all over again. I wish I had the opportunity to serve my country again and to serve it with Honor. Unfortunately I have already messed up my life with the errors of my youth. In summery I respectfully request that this review board take into consideration the circumstances and my change of heart when deciding on my case. I ask you to give me back my life and allow me to right the wrong decisions I have made.”

Additional issues submitted by Applicant’s counsel/representative (American Legion):

2.  “(Propriety Issue) This former member avers that his command failed to properly follow Navy regulations is administering his punishments and processing him for separation.  On this basis, he opines that upgrade of his character of service is warranted.

3.  (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of the application.”

Documentation

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

Letter to the American Legion from the Applicant, dated March 3, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	970121 - 970128	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  970129		Date of Discharge:  980901

Length of Service (years, months, days):

	Active:    01  07  03
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  88

Highest Rate:  ETSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  1.00 (1)	Behavior:  1.00 (1)		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  26

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

Chronological Listing of Significant Service Events:

970804:	Applicant issued a page 13 for unauthorized absence.  [Extracted from Report and disposition of offenses dated 971224.]

980107:	NJP for violation of UCMJ, Article 86 (3 specs): (1) Absent from unit on 0720, 971010 to 1530, 971012 (2 days), (2) Absent from unit on 0720-1020, 971120, (3) Absent from unit on 0930, 971224 to 0700, 971230 (5 days), violation of UCMJ, Article 92: Failure to obey lawful order on 971215, to wit: exceeding weekend liberty limits.
	Award: Forfeiture of $100 per month for 2 months, restriction for 21 days, turn cell phone over to LPO, oral admonition.  Restriction for 14 days suspended for 2 months.  No indication of appeal in the record.

980107:	Retention Warning:  Advised of deficiency (Unauthorized absence and failure to obey lawful order.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

980715:	NJP for violation of UCMJ, Article 86 (2 specs): (1) Unauthorized absence from 0730, 980601 to 2250, 980617 (16 days), (2) Unauthorized absence 0730, 980628 to 1100, 980701 (3 days), violation of UCMJ, Article 92: Failure to obey lawful order on 980619, to wit: consuming alcohol while underage.
	Award: Restriction and extra duty for 30 days, reduction to FTSA.  No indication of appeal in the record.

980716:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.

980716:	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 

980728:	Drug/ETOH dependency evaluation: Psychologically dependent, currently controlling with abstinence.  P: Level II.

980807:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.

980820:	COMSUBGRU TWO 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 19980901 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).

Issue 1.  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 two nonjudicial punishments for unauthorized absences totaling 26 days and for failure to obey lawful order.  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.  

The NDRB, under its responsibility to examine the propriety and equity of a discharge, will change the reason for discharge if such a change is warranted.  The service record clearly documents the pattern of misconduct which resulted in the applicant’s discharge.  No other Narrative Reason for Separation could more clearly describe why the applicant was discharged.  To change the Narrative Reason for Separation would be inappropriate.  Therefore, relief denied.  

Issue 2.  The Applicant's other than honorable discharge was proper and equitable.  The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted.  There is no evidence of impropriety, inequity or procedural irregularities in the Applicant's discharge.  The Applicant's misconduct is clearly documented.  He acknowledged and waived his rights to administrative review.  The Applicant was afforded the appropriate due process during the processing of his case.  An upgrade of the Applicant's discharge to an honorable characterization is not warranted.  Relief denied.

Issue 3.  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 proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  At this time the Applicant has not submitted any 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 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), Change 18, effective
12 Dec 1997 until 21 Aug 2002, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - 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.
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