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Docket No. ND03-00834

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

 ex-ITSR, USN
Docket No. ND03-00834

Applicant’s Request

The application for discharge review was received on 20030409.  The Applicant requests the 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 list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040303.  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)/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.  “Dear Sirs:
My name is A_ E_ S_ (Applicant), SSN (social security number delete) I was active duty in the United States Navy as an E-4; Information Technologist 3rd Class S_ (Applicant), I lost rank because of random acts of tardiness and disruptive behavior.  My misbehavior was due to an acute bout of depression brought on by events that had been occurring at home between my mother and stepfather.  While in the Navy I sought help for my acute depression and had therapy with Lt. Commander G_.  Through my medical records you will note that she was well aware of what I had gone through with my stepfather and that my mother was and continued to be abused by him while I served in the US Navy.

My step-father, Mr. A_ W_ B_ was under investigation by the FBI and the ATF for committing the act of arson for profit.  As a result of the pending investigation my mother suffered verbal and physical abuse by him.  He threatened to take my little brother out of the country if she ever talked to the authorities.

I enlisted in the Navy approximately two weeks after his restaurant burned to the ground on December 24, 1996.  My mother, K_ M_ B_ would telephone me constantly upwards to 5 to 6 times per week.  She was terrified by my stepfather and had gone as far as to talk with my commanding officer, Commander G_, TACRON TWO TWO about her horrifying plight.

As the telephone calls continued my depression became more and more unbearable.  I was terrified for my mothers well being and felt helpless as I knew that my being thousands of miles away from her that there was nothing I could do to help her.  It affected my job performance as all I did was worry about my mothers well being.  As time went on I became disruptive to my peers and felt worthless and became acutely depressed.  My depression progressed to the point whereas I was not helping the US Navy nor helping myself.  Eventually because of my misconduct on April 7, 2000 I received a General Discharge under Honorable Conditions.

I couldn’t wait to get home to help protect my mother from my stepfathers hand.  I felt a great burden was off my chest knowing that I was there for my mother and that my stepfather would never touch her again while I was there.

After my discharge from the Navy, I was informed that based on the events that was occurring at home I could have and should have received a hardship discharge.  I was never told of such nor given the opportunity to obtain a hardship discharge by my commanding officer.

In August of 2001 my stepfather was arrested by federal authorities and incarcerated.  One week later there was a bond hearing where my mother testified to the fact that my stepfather had beat her.  Along with her testimony was physical evidence, graphic pictures of my mother with her face swollen and blackened eyes.  The federal judge who heard the case eventually ruled that my stepfather was a danger to my mother and refused to release from jail.  He remained incarcerated pending the trial.

Several months later my stepfather plead guilty and was sentenced to a Federal Penitentiary.  He is currently at the federal prison in Springfield, MO.

In light of all the events that I had been through regarding the above, I would hope you would understand my plight.  It was never my intention to leave the US Navy.  I loved what I was doing for my country.

In my mind, at the time I felt my mother needed me more than my country did.  I needed to protect her from harm at my stepfathers hand.  I thank God every day that he was put away and my mother now has some peace and happiness in her life.  Therefore I am pleading to you that you consider my request to upgrade my discharge from General (under honorable conditions) to a Honorable Discharge.  If in fact you have additional questions of me I would be more than happy to respond to any request that you may have.

Yours Very Truly

A_ E_ S_ (Applicant)”

Documentation

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

Applicant’s DD Form 214
Newspaper article, dated August 25, 2001
Two Internet articles, dated August 24, 2001
Newspaper article, undated
DD Form 149, dated July 2, 2002
Examination results from CompTIA, dated June 27, 2001
Examination score report, dated February 19, 2002
Navy Achievement Medal Certificate
Applicant’s resumé
St. Charles County Sheriff’s Department criminal record check, dated April 3, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	960809 - 970112	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  970113		Date of Discharge:  000407

Length of Service (years, months, days):

	Active:    03  02  25
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  64

Highest Rate:  RM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA*			Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, N&MCAM

Days of Unauthorized Absence:  None

*  No Marks Available for Review

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

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

Chronological Listing of Significant Service Events:

991019:	NJP for violation of UCMJ, Article 86: Absence without leave on 990922, violation of UCMJ, Article 107: False official statements on 990922, violation of UCMJ, Article 92: Insubordinate conduct toward warrant officer, noncommissioned officer or petty officer on 990922.
	Award: Forfeiture of $589 per month for 2 months, extra duty for 45 days, reduction to RMSN.  No indication of appeal in the record.

991208:	NJP for violation of UCMJ, Article 92: Failure to obey order or regulation, violation of UCMJ, Article 86: Absence without leave.
	Date of offense: 991130 and 991201.
	Award: Reduction to RMSA.  No indication of appeal in the record.

000204:	Retention Warning: Advised of deficiency (Disobeying a lawful order, dereliction of duty, failure to go to appointed place of duty, and CO’s NJP 991208.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
  
000223:	NJP for violation of UCMJ, Article 92: Failure to obey order or regulation on 000204 and 000207.
	Award: Forfeiture of $502.24 per month for 2 months, reduction to RMSR.  No indication of appeal in the record.

000407:	DD Form 214: Applicant discharged with a characterization of general (under honorable conditions) by reason of misconduct due to a pattern of misconduct, authority:  NAVMILPERSMAN, Article 1910-140.

Discharge package not found

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000407 with a characterization of general (under 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:  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.  While he may feel that his family problems were contributing factors, they do not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service.  His service record is marred by award of non-judicial punishment (NJP) on three separate occasions.  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, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.   At this time, the Board determined that the documentation submitted by the Applicant does not 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), 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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