Author: CAP
Last saved by: Department of the Navy
Company: NCPB

Docket No. ND05-00277

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

ex-SR, USN
Docket No. ND05-00277

Applicant’s Request

The application for discharge review was received on 20041210.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable or general (under honorable conditions).  The Applicant requests a documentary record review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20050214.  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:

1.  “Dear Sir,

It was recommended by, G_ C_ of your Staten Island office, that I contact you to request your aid concerning my discharge from the United States Navy on May 11^th 1992, which was under other than honorable conditions.  With the retrospect allowed by the passage of time and the acquisition of experience and the wisdom of age, I can say that while I wanted nothing more than to serve my country with honor, I should not have entered into military service at 18 years old.  I was not ready for such service, and, if it were possible to reverse such a decision or correct wrongs, I would not hesitate to do so.  I would much rather have waited to join the military until I was mature enough, than to have joined unready.  I wanted to serve my country, but I was also charmed by recruitment: the desire for ready-money for higher education, and the immediate release from parental bonds, both things that my life at 18 sorely lacked.

I was not prepared for the training and the responsibility of a serviceman.  I made rash, immature decisions that ultimately lead to my early release from service.  I enjoyed the freedoms, which came with shore leave and being away from home.  In the period of time since then I have yearned to correct the patterns, which lead to my discharge and to prove to myself and family that I could do better than I had.

Now at the age of 32, I feel that I have accomplished a number of things, and wish that the mistakes of my past do not hinder my future.  I have attended the City University of New York, taking courses toward a degree in English Literature.  During my University career, I established one of the leading literary societies in the United States dedicated to the study of the works of J.R.R. Tolkien.  This group, The New York Tolkien Society http://www.herenistarion.org publishes a bimonthly journal for members, and has sponsored academic events across North America.  As long as I can remember I have always wished to write and publish and share the joy of learning with others.  In recent years I have contributed articles to numerous scholarly publications, including the forthcoming Encyclopedia of Children’s Literature by Oxford University Press, the recent collection of essays Translating Tolkien: Text and Film, and will be contributing to Routledge’s Tolkien Encyclopedia due in 2006.  In the Spring of 2005, Holy Family University has asked my fiancé and I to conduct a series of lectures in Philadelphia.  We will be discussing Tolkien and his works.

The academic career that I have sought is blossoming, but it’s still a long way before it will fully provide for my family and I.  I am currently employed as a NY State Licensed Security Guard for the Mission of the Immaculate Virgin: Mount Loretto.  In recent months I have sought to take Civil Service exams for various positions that have opened, such as Park Patrol and Environmental Police Officer.  In researching the Civil Service exams and the positions they provide, I have realized that a requirement in order to be considered for a position would be an honorable discharge from military service.

I sincerely have regretted my actions during the course of my military service.  I have sought only to correct the mistakes I have made since my discharge, and not to have them be a deciding factor in my future.  I am submitting form DD 293 to The Naval Council of Personnel Boards, a copy of which is enclosed.  Any aide in this matter would be most welcome and appreciated.

I thank you for your time.

Sincerely,

A_ S_ B_ (Applicant)”

Documentation

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

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	900515 - 901115	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  901116		Date of Discharge:  920511

Length of Service (years, months, days):

	Active:    01  05  26
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  41

Highest Rate:  SR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (1)		Behavior:  2.70 (2)		OTA:  2.60

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  20

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:

901119:	You are being retained in the Naval service, despite your defective enlistment and induction due to fraudulent entry into naval service as evidenced by your failure to disclose your pre-service civil involvement/drug abuse.  8307 Shoplifting, Staten Island, NY.  No charges were filed.  This decision is based on the information you provided the Recruit Quality Assurance Interviewer and if it is found that additional information has not been disclosed, this waiver is void and you could be subject to other judicial or administrative proceedings.  However, any further deficiencies in performance or conduct may result in processing for administrative separation.

910807:	NJP for violation of UCMJ, Article 92: Failure to obey a lawful order on 910804, violation of UCMJ, Article 91: Insubordinate conduct on 910804.
	Award: Restriction and extra duty for 15 days.  No indication of appeal in the record.

910807:	Retention Warning from USS HALSEY (CG 23):  Advised of deficiency (Failure to obey a lawful order and insubordinate conduct.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910910:	Substance Abuse Screening/Psychiatric Evaluation: Assessment: Shows evidence of early dependence due to blackouts, tolerance, observed behavior.  Applicant would benefit from Level III.  Prognosis is good.  Diagnosis:  AXIS I: Alcohol dependence - early.  AXIS II: Schizotypal Traits.

910914	Applicant to unauthorized absence 0530, 910914.

910924:	Applicant missed ship’s movement.

911003:	Applicant from unauthorized absence 2330, 911003 (20 days/surrendered).

911010:	NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ, Article 87: Missing movement.
	Award: Forfeiture of $100 per month for 1 month, restriction and extra duty for 30 days.  No indication of appeal in the record.

911010:	Retention Warning from USS HALSEY (CG 23):  Advised of deficiency (Unauthorized absence and missing movement), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

911107:	NJP for violation of UCMJ, Article 86: Absence from appointed place of duty, violation of UCMJ, Article 117: Provoking speech, violation of UCMJ, Article 128: Assault, violation of UCMJ, Article 134: Drunk and disorderly.
	Award: Forfeiture of $100 per month for 2 months, restriction and extra duty for 27 days.  No indication of appeal in the record.

911107:	Retention Warning from USS HALSEY (CG 23):  Advised of deficiency (Assault, drunk and disorderly conduct, provoking speech, absence from appointed place of duty), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920113:	NJP for violation of UCMJ, Article 121: Larceny.
	Award: Forfeiture of $100 per month for 1 month, restriction and extra duty for 10 days.  No indication of appeal in the record.

920125:	NJP for violation of UCMJ, Article 109: Destruction of property other than military property of the United States.
	Award: Forfeiture of $200 per month for 1 month, restriction and extra duty for 15 days.  No indication of appeal in the record.

920125:	USS HALSEY (CG 23) notified Applicant of intended recommendation for discharge by reason of misconduct due to a pattern of misconduct.  Applicant notified that if discharge is approved, the least favorable characterization of service possible is under other than honorable conditions.

920125:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights.

920128:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

920203:	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 19920511 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 impropriety or inequity must have existed during the period of enlistment in question.  No such impropriety or inequity is evident during the Applicant’s enlistment.  When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  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 a variety of misconduct, including a fraudulent enlistment, unauthorized absences, orders violations, insubordinate conduct, missing movement, provoking speech, assault, drunk and disorderly conduct, larceny, and destruction of government property.  This misconduct resulted in four separate written counselings/retention warnings for his repeated misconduct and five nonjudicial punishment proceedings for violations of UCMJ Articles 86, 87, 91, 92, 109, 117, 121, 128, and 134.  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.  Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant contends his disciplinary problems were the result of his relative immaturity and youth at the age of enlistment.  The NDRB recognizes that serving in the U.S. Navy is challenging.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  It must be noted that most members of the Navy enlist at about the same age as the Applicant.  It must further be noted that, unlike the Applicant, the vast majority of these “young” servicemembers serve honorably and therefore earn their honorable discharges.  In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  The NDRB found that the Applicant's service was equitably characterized.  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 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, credible evidence of a substance free lifestyle, and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided sufficient documentation for the Board to consider.  Relief denied.

There is no requirement or law that grants recharacterization solely on the issue of enhancing employment opportunities and this issue does not serve to provide a foundation upon which the Board can grant relief.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

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 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 5420.174D 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.