Author: CAP
Last saved by: shirley.robertson
Company: NCPB

Docket No. ND04-00709

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

ex-SR, USN
Docket No. ND04-00709

Applicant’s Request

The application for discharge review was received on 20040324.  The Applicant requests the characterization of service received at the time of discharge be changed to general (under honorable conditions).  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that he was approaching the 15-year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington, D.C. area.  Applicant did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050107.  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: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“Issue No 1:

As I know my service record reflects, I served on active duty from May 2, 1989 to August 15, 1991, and was discharged under other than honorable conditions for a pattern of misconduct.  I am requesting review of my discharge characteristic based on 3 factors: 1) my performance record before bringing my new family to my first duty station, 2) the time that has elapsed since my discharge date, and 3) what I have accomplished since my discharge.  I seek this review in an effort to right some regrettable decisions I made a long time ago, for the purpose of closure.  Additionally, I would like to be found eligible for the only military benefit I really need, the Veterans Administration’s loan guaranty program.  Thank you in advance for considering this request.

From the moment I reported for basic training, I had high hopes and aspirations of becoming a Navy Seal.  This is the program I enlisted under.  While in basic, I learned that I could not manually valsalva (equalize the pressure in my ears) and would therefore be unable to pursue BUDS/Divefarer training.  This was disappointing, to say the least.  I was, however, able to continue with the “A” school I had chosen and could serve in that capacity.  I embraced the opportunity, having originally thought that the “A” school would also be taken away.

I reported to NTC San Diego and enjoyed wild success in Radioman school.  In fact, I earned a number of awards for teletype proficiency and graduated after 13 weeks with a 94%.

On November 24, 1989, my first son was born.  I missed his birth by only 24 hours, having completed “A” school the day after.  I had two weeks of leave between then and the date on which I was to report to my first duty station, December 9, 2004.  I decided it would be best to leave my wife and newborn son here in California while I reported and evaluated what was involved in having them join me later.

I reported as ordered.  Shortly after reporting, I learned that the U.S.S. Suribachi was scheduled to deploy to the Mediterranean in March.  My wife and I again decided to wait until my return before reuniting the family.

I deployed as scheduled, and had a very successful transition into the Radioman field, as evidenced by the performance evaluations during the period from March - September, 1990.  In fact, all of my evaluations and service record notes reflect exemplary service from the date I entered service through September of 1990.  During this deployment, I earned my Veterans status, when we were rerouted "in theater” when Desert Shield broke out.

My problems began upon my return.  I brought my family out to New Jersey and everything began to slide downhill.  There is a clear demarcation line in my service record consistent with this event.  My wife completely failed to adjust to military life and, over the next 10 months everything fell apart.  In October of 1990, I inadvertently overslept, and missed ship’s movement.  I went to mast for this, but was given a break and allowed to retain my rate and clearance.

Thereafter, my wife became pregnant with our second son and was having some complications with the pregnancy.  She felt scared, alone, and without my support.  I applied for, and received emergency leave on one or two occasions during this time, but was unable to overcome the difficulties at home.  My focus, attention to detail and decision making abilities were all negatively affected.  On several occasions, I went UA to spend time with my wife and tend to her needs.  I did this intentionally, knowing the consequences it would bring.  The last time, in or around June or July, 2001, I actually broke restriction and went UA, after already being told I was going to be discharges, because of the pain my wife was in.  I had again asked for emergency leave, but it was denied and I felt I had no choice.  This decision landed me in the brig for three days of bread and water rations.

On August 15, 1 991, my discharge became effective and I left the ship, and the Navy.

Here is from where I come.  I do not wish to make emotional pleas in an effort to justify my actions of 13 years ago.  I make no excuses and understand the nature of the decisions I made and the consequences I accepted as a result.  I made serious mistakes and wish I could have it all over to do again.  I would likely still be on active duty.

Presently, I am a paralegal, working towards becoming a lawyer.  I have been in this field now for almost 5 years.  I have a new family, and only seek to close an embarrassing and regrettable chapter of my life.  I had no idea that military life could and would strain a family so.  Sparing the hindsight cliche, I think it all speaks for itself.

Based on the foregoing, I respectfully request that the Board consider my application for discharge review and grant my request to upgrade from other than honorable to general under honorable conditions.  Thank you again for your time.”

Documentation

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

Enlisted Performance Evaluation for December 10, 1989 to November 7, 1990
Enlisted Performance Evaluation for November 8, 1990 to January 31, 1991

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	890314 - 890501	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  890502		Date of Discharge:  910815

Length of Service (years, months, days):

	Active:    02  03  14
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 (24 months extension)

Education Level:  11			AFQT:  87

Highest Rate:  RMSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.73 (3)	Behavior:  3.27 (3)		OTA:  3.27

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, NDSM, SASM

Days of Unauthorized Absence:  22

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:

890607:	Retention Warning from Recruit Training Command, Orlando, FL:  Advised of deficiency (Unsatisfactory performance and/or conduct by your incapability to successfully pass the (4-4) DOT physical training test as outlined in the curriculum outline for recruit training), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

890913:	Retention Warning from Service School Command, Naval Training Center, San Diego, CA:  Advised of deficiency (Numerous unauthorized absences from company functions 890726, 890803 890815, 890817, 890821, 890825, 890908 and 890812).  Unauthorized absence from morning quarters for muster, instruction and inspection, received company commander counseling for unauthorized absences on 890726 and 890803, also counseled for being unauthorized absence from marching on 890808.  Assigned to military standards session 890916, civilian clothes revoked on 890808.  Applicant’s unauthorized absence’s continued after receiving counseling on 890808 until finally, he was unauthorized from an entire watch and subsequent duty section muster.  This behavior pattern must be broken to prove that he can adapt to the naval environment.  Notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

890921:	Retention Warning from Service School Command, Naval Training Center, San Diego, CA.  Advised of deficiency (skylarking caused injury to SR B_ which required hospitalization and loss of 48 working hours), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

901025:	Applicant to unauthorized absence 0630, 901025.

901025:	Applicant missed ship’s movement.

901101:	Applicant from unauthorized absence 1130, 901101 (7 days/surrendered).

901107:	NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ, Article 92: Failure to obey a lawful order, violation of UCMJ, Article 87: Missed movement.
	Date of offenses: 19, 22, 23 October 1990.
	Award: Forfeiture of $250 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  Forfeiture and reduction suspended for 4 months.  No indication of appeal in the record.

910130:	Retention Warning from USS SURIBACHI (AE-21):  Advised of deficiency (underaged drinking), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910314:	NJP for violation of UCMJ, Article 86: Unauthorized absence on 910312.
	Award: Restriction and extra duty for 45 days.  No indication of appeal in the record.

910314:	Retention Warning from USS SURIBACHI (AE-21):  Advised of deficiency (unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910627:	NJP for violation of UCMJ, Article 86 (2 specs): Failure to go to appointed place of duty, violation of UCMJ, Article 91 (2 specs): Willful disobedience of a warrant officer/petty officer.
	Award: Restriction and extra duty for 30 days, reduction to E-2.  No indication of appeal in the record.

910703:	USS SURIBACHI (AE-21) notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and commission of a serious offense.

910703:	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.

910715:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and commission of a serious offense.
910720:	Applicant to unauthorized absence 2230, 910720.

910805:	Applicant from unauthorized absence 0040, 910805 (15 days/surrendered).

910809:	NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ, Article 134: Breaking restriction.
	Award: Bread and water for 3 days, reduction to E-1.  No indication of appeal in the record.

910812:	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 19910815 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:  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 nonjudicial punishment (NJP) on four separate occasions for violating the UCMJ, Articles 86, 87, 91, 92 and 134 and three separate retention warnings for unsatisfactory performance, unauthorized absence and skylarking thus substantiating his misconduct.  An upgrade would be inappropriate.  Relief denied.

The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board (NDRB).  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veteran’s benefits and this issue does not serve to provide foundation upon which the Board can grant relief.  

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.  

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 other evidence related to his discharge 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 15560A, Change 8 effective 21 Aug 89 until 14 Aug 91), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT ‑ A PATTERN OF MISCONDUCT. 

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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

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.