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

Docket No. ND05-00374

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

 ex-SR, USN
Docket No. ND05-00374

Applicant’s Request

The application for discharge review was received on 20041227.  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 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/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.  “I feel the Under Other Than Honorable Discharge was inequitable because I was having numerous personal problems which needed to be addressed with counseling.  Counseling was not provided to me.  I do not feel I was properly advised to the ramifications of my discharge at that time.

PLEASE SEE MY ATTACHED PERSONAL LETTER WHICH FURTHER ADDRESSES THE ISSUES OF AWOL AND LARCENY AND OFFERS AN EXPLANATION OF MY ACTIONS AND MY STATE OF MIND AT THE TIME.”

2.  “To whom it may concern,

My name is J_ E_ P_ III (Applicant) and i am writing you this letter to ensure that when you review my case file that you have all the facts about it so that you may make an impartial decision not just based on my case file.  I appreciate the panel taking time out of their busy schedule to review my case.

I would like at this time to ask you for your support in upgrading my release from the military to at least general if not honorable.  I feel it was inadequate for the following reasons.  Again i thank your for your patience in this matter!

For starters my life has never really been something to be proud of for my childhood was wrought with one despairing event after another.  For the record, I’ve never been in any real trouble at all in my life, as my civilian record will show.  My father was a cop for over 20 yrs before he died.  He died in 1996 shortly after i graduated high school.  I spent the next several years trying to piece together how he died and why.  I still have no answers and no one can tell me what actually happened to him.  All i know is that he drowned underneath the Corpus Christi Harbor Bridge in Texas.  Not too long after this i joined the U.S.  NAVY and started boot camp.  Shortly thereafter i went to Pensacola Florida to CTM “A” school at Corey Station.  I was on my way to a great career till one Friday morning my fiance that i had known for 20 yrs.  I was scheduled to get married to her 6 months later; however, she was killed in a car wreck at 11:00 AM by a drunk driver while she was on her way to get lunch.  She was in a coma for about 2 weeks on life support before she passed.  It was at this time shortly after we buried her that I was finally made aware that she was 3 months pregnant with my son.  I was devastated.  I sought counseling but it went no where as my counselor could only say is “YOU NEED TO JUST GET OVER IT AND MOVE ON” Every one that i tried to talk to that is all they would say and nothing more.  As you can imagine being barely old enough to even drink at the time i was mortified as i was still dealing with my fathers death and its effects.  As a result i struggled to eat, breathe, Think, or do my studies at all.  I eventually made some bad decisions as a result and ended up losing my school over it.

I was then sent home for 30 days to mourn by the captain.  He found out what had happened and realized I needed some time to grieve for my loss.  He arranged a flight home with his condolences which meant allot to me and i tried to work things out before i was to report to Mayport Naval Station in Jacksonville, Florida.  Arriving at my new duty station i was very detail oriented as always and doing what i could to help out wherever i was needed on board.  After about 8 months after i left my “A” school i met another woman who captivated me just as my lost love had and i spent all the money i could get to secure a townhouse and furnish it for our new life together and i was doing quite well at the time.  In January we left for our 6-month deployment and i was so excited because it seemed at the time that for the first time in my life i was headed down a great and bright career ahead of me.  As with everything in life all good things must come to an end.  During the first 2 months of our cruise i got a phone call from my fiancée “T_” saying she was leaving me.  She was also in the NAVY as well at the time.  I asked my command for leave to deal with it and i got no help from any one on board the ship and i backslid into a deep depression and made some more mistakes.

I know you probably have seen a thousand or more people just like me who come through the service.  I’ll admit I made some bad choices but I was not a bad person.  All I wanted was some one to help me with all i was going through.  All my life I have struggled with the problems with my own family and its still going on to this very day but with one very big difference.  I finally got the help I was looking for and now Ii am going to college trying to finish what I once began so long ago in the NAVY.  Like I said all I needed was a little bit of compassion and help from the people I respected in the navy.  These are just a couple of reasons why I went awol all those times and for one instance of the larceny which is on my military record that was a sham.  We had a theft problem on the boat because people played pranks on us by taking parts of our uniform and throwing it over the side while we were not around and they did this to see our reactions as we scurried around the berthing relentlessly searching for our missing gear.  My boots went missing one night while I was off the ship and upon my return we were getting ready to get underway so I went to my BM1 and told him my situation so he suggested that i take a pair off the top of the locker near his cubicle in the berthing and that as soon as we were back in port I could get me another pair at no cost to me.  Well as we were still mooring the ship upon our return The ships master at arms came to see me on the focsle of the ship where we were trying to finish mooring the ship and he yelled at me that I stole his boots and turned and walked away.  I felt I was in no trouble since i was backed by BM1 who said it was ok to take them.  They sent me to CO’s mast for it and BM1 would not back me up on what he had told me to do previously.  I got shafted on that deal.  Please don’t misunderstand me in that i really did love being in the navy and it did give me a great sense of pride at times for i was a very hard worker which no one on board would ever be able to contest.  I know the things I did was wrong and in the end I still asked for help even when they were kicking me out and the only response I got was that they didn’t need me in the military anymore...  The Lt. junior grade acting as the legal officer told me that I was done for and that the only option I had was that after 6 months of being out of the service that I could get my status changed to honorable as long as I had no criminal record in the civilian world.

I guess the bottom line in this whole mess is I really wanted to make a career out of serving my country while getting and education and I feel I wasn’t given the proper chances to get help for myself and it caused me great emotional trauma and never really had the chance to make the most of the time I had.  If it were possible I would love another chance to prove to myself and to you that I am a good person and I strive for more at every turn and my past actions have left me with no options but to take what i could get which is little to nothing and a record that will follow me for all time.  I want you to know that that lost little boy is gone now and he went back to school and works hard to finish what he once had in the service.   If I cannot return to serve my country then i would respectfully request that you show leniency toward me and let me have my honorable discharge at this time.

Once again I thank you for taking time out of your busy schedules to review my case file and discuss it.  If you need any more information on me or where I am at today, then here is my address:

J_ E_ P_ III (Applicant)
(address deleted)”

Documentation

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

Applicant’s DD Form 214
Letter of support, dated May 6, 2004
Letter of support, dated April 29, 2004
Letter of support, dated May 13, 2004
Letter of support, dated May 5, 2004

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	951221 - 961223	ELS
		   USNR (DEP)	971006 - 971008	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  971009		Date of Discharge:  991117

Length of Service (years, months, days):

	Active:    02  01  09
	Inactive:  None

Age at Entry:  21			Years Contracted:  4 (24 months extension)

Education Level:  12			AFQT:  57

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.67 (3)		Behavior:  1.33 (3)		OTA:  2.36

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, 9mm PMR

Days of Unauthorized Absence:  14

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:

980528:	NJP for violation of UCMJ, Article 86: Absence without leave.
	Award: Forfeiture of $463 per month for 1 month, restriction and extra duty for 15 days.  No indication of appeal in the record.

990527:	NJP for violation of UCMJ, Article 121: Larceny of personal property.
Award: Forfeiture of $479.70 per month for 1 month, restriction and extra duty for 30 days, reduction to E-1.  No indication of appeal in the record.

990528:	Retention Warning:  Advised of deficiency (Unauthorized absence.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

990909:	Applicant to unauthorized absence 0700, 990909.

990913:	Applicant missed ship’s movement.

990922:	Applicant from unauthorized absence 1953, 990922 (14 days/surrendered).

990924:	NJP for violation of UCMJ, Article 86: Absence without leave, violation of UCMJ, Article 87: Missing movement.
	Award: Forfeiture of $479 per month for 2 months, confinement on bread and water for 3 days, reduction to E-1.  No indication of appeal in the record.

991029:	NJP for violation of UCMJ, Article 86: Absence without leave.
	Award: Restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

991102:	Applicant notified of separation by reason of misconduct due to a pattern of misconduct.  The least favorable characterization of service possible is Under Other Than Honorable.

991102:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

991108:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

991116:	Commander, Western Hemisphere Group 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 19991117 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).

Issues 1-2:  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 four separate occasions for UA, missing movement and larceny thus substantiating the misconduct.  Relief is not warranted. 

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

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.  Relief denied.

The Applicant states that he was told that after six months he could have his discharge upgraded.  There is no law or regulation that authorizes a discharge to be automatically upgraded after six months.  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), 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 5420.174D 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.