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Docket No. ND04-00933

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

ex-SR, USNR
Docket No. ND04-00933

Applicant’s Request

The application for discharge review was received on 20040518.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to convenience of the government.  The Applicant requests a documentary record 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 20041112.  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 narrative reason of the discharge shall not change.  The discharge shall remain: UNDER HONORABLE CONDITIONS (GENERAL)/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:

“Dear DRB:
The following issues are the reasons I believe my discharge should be upgraded to Honorable.  If you disagree, please explain in detail why you disagree.  The presumption of regularity that might normally permit you to assume that the service acted correctly in characterizing my service as less than honorable does not apply to my case because of the evidence I am submitting.

1.  Clemency is warranted .It is an injustice for me to continue to suffer the adverse consequences of a bad discharge.
I tried my best to be the man the Navy wanted but because of my medical problems which began with a fractured wrist the very first week on a ship.  I really couldn’t do most of the jobs that were required of a deck seaman.  Later, while on HUMS in Chicago when my mother had cancer for the second time, I suffered a back injury while being a recruiter’s aide in an accident in a government vehicle.  They offered me a HUMS discharge since I am an only child but my integrity made me want to finish my term.  My self esteem was destroyed when I was required to leave so close to my termination.  I feel discouraged to look for a good job with a general discharge on my record.

2.  My average conduct and efficiency ratings/behavior and proficiency marks were good.
I had only one article 15.  When I first got to the ship.  I relieved the watch late because I napped at lunch and slept through the alarm.  Within the second week of being on my first command, I fractured my right wrist which is my dominant hand and by doctor’s orders was on light limited duty for a deck seaman.  Problems only occurred when I was asked to do work that was against my medical chit and could do me bodily harm.  My chief was angry that I could not perform all of the duties of a deck seaman and basically said I was “just taking up space”.  After that I always got brought up to captain’s mast for any offense.

3.  I was so close to finishing my tour that it was unfair to give me a bad discharge.
I had served my country for the vast majority of my enlistment contract as I was only months away from my scheduled discharge.  I had every intention of fulfilling my contract to the very best of my ability at the time.  I had not expected a fractured wrist, a vehicle accident, complications from my jaw surgery.  I went into the navy a very fit 18 year old.  I came out a very old 20 year old now collecting 30% disability.

4.  Medical or physical problems I had impaired my ability to serve.
My medical orders were not to lift more than 10 pounds nor do any push ups because I had a fractured wrist and was in a cast for 5 months which later needed surgery where a piece of my hip was put in my wrist with a pin that I will permanently have embedded .  I was often told to do jobs that went against the medical chit and would have further injured me.  I also needed to go to occupational therapy which was an hour away three times a week for about six months.  After a government vehicle accident I had/have back problems.
I received permission to have needed jaw surgery but due to complications, I needed to be excused from duty on medical hold for two months instead of the expected two weeks.  Even after the two months, I was excused from duty to see the surgeon who was one hour away.  I was told numerous times by my whole chain of command including the XO that this was the reason I was not wanted on the U. S. S. Carney.

5.  I have now numerous physical disabilities and was medically qualified to perform only limited duty arid thus unable to perform all deck seaman duties.  Med hold or a medical discharge recommended by my orthopedic doctor was unfairly denied.
When I told my orthopedic doctor that my command thought I was malingering, he offered two options (1) medical discharge or (2) being put on med hold for the few months I had left.  On May 2,1999, OPS and XO thought I was malingering and I quote “I’m going to get you off of this ship one way or another, be it medical or out of the navy because I am not going to have you on light limited duty on my ship for 6 months.” On March 3, the doctor approved me for med hold until discharge but when I went back to my command, I was told I could not do that because of the impending NJP.

6.  The punishment I got at discharge was too harsh - it was much worst than most people got for the same offense.
The reason I was discharged was because I flashed a flash light at the CS on watch at 2230 and was relieved from the helm.  They said I was derelict in my duty, but I was at the helm and we were on the right course at right speed.  When I sat down with the Captain, I said “Sir you can go to any navy in the world and the helmsman’s not going to be standing there at attention with two hands on the wheel the whole time” and he just said I know.  The XOI made sure I was discharged and not just punished.

7.  My command abused their authority when it decided to discharge me and give me a bad discharge.
When I went up to XOI my First Class Petty Officer said I was an average worker.  My Chief and my First Lieutenant said they didn’t know me because I was always at medical.  But Ops and XO said I’m a maligner, therefore faking my injures and I just wanted my college and benefits.  My XO had signed a request chit for two weeks, but then I was on medical hold due to my jaw surgery recovery.  He nor I knew I would be gone for two months.  He was very angry to have lost a worker and felt I deceived him

8.  My record of UA indicates only ONE minor, isolated offense - See Second Captain’s Mast below.

9.  My discharge was based on many offenses, but they were all minor offenses.
My record of NJP’s/Article 15s indicates only isolated or minor offenses.  First Captain’s mast was for under-age drinking.  I felt sorry for a ship mate who had no friends and was very slow.  So I went with him to have a few drinks under the train tracks off base.  He got drunk but I made sure he got back on board and into his berthing before went to my rack.  As I was sleeping the duty master at arms asked me what happened because the guy was throwing up.  I said “We were drinking under the train tracks”.  When I went before the DRB, the chiefs said in a way you were helping out a shipmate.  That was my only intention.  My chief, however, said that I thought I was better than him and that I was worthless with a cast and a light limited duty chit so they were going to bring it up to XOI and refer it to captain’s mast.  Punishment: a suspended bust on reduction in rank and I had to do 45 days extra duty.

Second Captain’s Mast, I was scheduled to work in the reefer decks and as the truck had not arrived yet, I went to the mess deck, one level above, to get some water.  The mess deck master at arms saw me and said come with me to the quarter deck.  At which time, I was instructed to go to the front of the working party.  Because I had a limited duty chit, I told him I couldn’t and I returned to my assigned duty in reefer decks.  It was a Saturday which was supposed to be my day off in the cranking rotation, but we had stores.  It went all the way to captain’s mast.
Violation: UCMJ art 86, unauthorized absence and art 91 insubordinate conduct toward a petty officer.  Punishment: RIR suspension vacated, 45 days extra duty, FORF 1/2 PPM x 2

Third captain’s mast was at 2230 at night and I was driving the helm at the correct course and speed.  I was trying to respond to the bright bridge by flashing a flash light in front of his eyes and not in them so he wouldn’t lose his night vision.  The conning officer asked what I was doing and I replied “nothing” because I was not doing anything out of the ordinary.  Then he said “your fucking around, that’s what your doing.” He relieved me of the helm without giving me a chance to explain and took it all the way to captains mast for dereliction of duty even though I was at the helm at the right course and speed.  I was called sick, lame, lazy, a malingerer.  It went to captains mast because of my medical chit and the fact that OPS and XO felt that they were a man short.

Sincerely,”

Documentation

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

Copy of DD Form 214
Self-Help Guide to Discharge Upgrading (8 pp.)
Letter of recommendation from S_ F_
Letter of recommendation from M_ D_
Letter of recommendation from M.L. R_
Applicant’s service record
Applicant’s medical and dental record

PART II - SUMMARY OF SERVICE

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

	Inactive: None
	Active:   None

Period of Service Under Review:

Date of Enlistment:  960429		Date of Discharge:  990402

Length of Service (years, months, days):

	Active:    02  08  08
	Inactive:  00  02  26

Age at Entry:  17			Years Contracted:  8

Education Level:  12			AFQT:  58

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.00 (3)	Behavior:  1.67 (3)		OTA:  2.28

Military Decorations:  None

Unit/Campaign/Service Awards:  NER (2), SSDR, Navy Rifle Marksmanship Ribbon

Days of Unauthorized Absence:  None

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

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

Chronological Listing of Significant Service Events:

970728:	NJP for violation of UCMJ, Article 86: UA; violation of UCMJ, Article 91:  Insubordinate conduct towards a petty officer.
	Award: Forfeiture of $450.45 per month for 2 months, extra duty for 45 days, reduction in rank suspension vacated.  No indication of appeal in the record.

980219:	BUPERS approved Applicant’s request for humanitarian reassignment until 980731 due to mother’s cancer.

990304:	NJP for violation of UCMJ, Article 92: Dereliction in the performance of duties.
	Award: Reduction to SR.  Appealed 990312.  Appeal denied 990402.

No Discharge Package

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19990402 under honorable conditions (general) for misconduct due to a pattern of misconduct (A).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).

Issue 1.  The NDRB is restricted to considering discharge upgrades based on clemency only with respect to a discharge adjudged by a court-martial.  Therefore, in the Applicant’s case, this issue does not provide a basis for relief.

Issues 2, 3, 6-9.  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 at least two occasions for violation of UCMJ, Articles 86, 91 and 92.  A sailor who receives two or more NJPs may be administratively separated by reason of a pattern of misconduct.  No other narrative reason more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation.  In addition, the Applicant’s military bearing/character evaluation average 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.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The issues, statements and documentation presented by the Applicant do not refute the presumption that his administrative separation was proper and equitable.  An upgrade to honorable is inappropriate.  Relief denied.

Issues 4-5.  Administrative separation for misconduct takes precedence over possible separation for other reasons.  The Board found no indication from the records that the Applicant was inequitably or improperly treated by his command due to his medical condition or that he was inequitably or improperly denied a medical discharge.  Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question.  No such inequity or impropriety 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, 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, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that may be provided to receive consideration for relief, based on post-service conduct.  The Applicant’s evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his discharge.  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 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 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

C.  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.

D.  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.  

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.