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Docket No. ND05-00474

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

 ex-AA, USN
Docket No. ND05-00474

Applicant’s Request

The application for discharge review was received on 20050126.  The Applicant requested that his characterization of service received at the time of discharge be changed to general (under honorable conditions).  The Applicant requested a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area.  The Applicant listed the Veterans of Foreign Wars as his representative on the DD Form 293.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 20051107.  After a thorough review of all available 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 characterization 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:

The Applicant’s Veterans of Foreign Wars representative submitted the following issues to the Board.  These issues supersede the Applicant’s issues submitted on his DD Form 293.

Issue 1:  “The Applicant has become a productive member of society.  Post service equity.”

Issue 2:  “The Applicant was led to believe that he was authorized absence form 6 Oct 90 to 10 Oct 90.”

Issue 3:  “The Applicant suffers from a disabling neuropathy, which hampered his ability to perform his duties.” 

Documentation

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

Office of Federal Protective Service, Guard Favorable Adjudication, dtd 22 April 2002
Letter of recommendation from D_ B_ Senior Patrol Officer Georgetown University, dtd 21 November 2005
Letter of recommendation from HM3 C_ S_ U. S. Navy, dtd 20 November 2005
Letter of recommendation from C_ L. S_ co-worker, undated
Letter of recommendation from Sergeant C_ A_ Georgetown University Department of Public Safety, dtd 21 November 2005
Letter of recommendation from A_ N. K_ Georgetown University Department of Public Safety, dtd 21 November 2005

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	890512 - 890522	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  890523		Date of Discharge:  930205

Length of Service (years, months, days):

	Active:    03 08 13	(Does not exclude lost time)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  04
	Confinement:		  30

Age at Entry:  19			

Years Contracted:  4

Education Level:  12			AFQT:  25

Highest Rate:  AA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.20 (2)		Behavior:  2.90 (2)		OTA:  3.10 (2)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal, Southwest Asia Service Medal.

Days of Unauthorized Absence:  34

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:

890512:	The Applicant signed drug and alcohol abuse statement of understanding.

890524:	The Applicant was briefed on Navy policy on drug and alcohol abuse as set forth in OPNAVINST 5350. 

890918:	NJP for violation of UCMJ, Article 112a (wrongful use of a controlled substance).
	Award: Forfeiture of $323.10 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

901006	Applicant to unauthorized absence, 0630 06 October 1990.

901010:	Applicant from unauthorized absence, 0645 10 October 1990 (4 days/surrendered).

901024:	Applicant charged with violation of UCMJ Article 92 (failure to obey lawful order) by failing to return his belongings to his original room #279.

910123:	NJP for violation of UCMJ, Article 86 (unauthorized absence) i.e. 901006-901010 and Article 92 (failure to obey lawful order) by failing to return his belongings to his original room #279.
	Award: Forfeiture of $100 per month for 2 months, extra duty for 30 days, reduction to E-1.  Reduction suspended for 6 months.  No indication of appeal in the record.

910125:	Retention Warning:  Advised of deficiency (1) Substandard performance, (2) pattern of misconduct i.e. failure to go to appointed place of duty, failure to obey lawful orders, unauthorized absence and wrongful use of controlled substance, marijuana.  Notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

910311:	Applicant unauthorized absent from PRT make-up on 11 March 1991.

910430:	Nephrology Clinic, Naval Hospital Portsmouth, VA:  Deployed to Bahrain and medivaced back.  Most likely Nephropathy.  Fit for full duty including Persian Gulf.

910726:	Applicant charged with violation of UCMJ Article 113 (misbehavior of a sentinel) on 26 July 1991.

910821:	Medical record documents the Applicant’s attendance to “in residence alcohol treatment”.

910825:	Applicant charged with violations of UCMJ Article 117 (provoking gestures and speeches) and Article 134 (drunk and disorderly) on 25 August 1991.

911010:	NJP for violation of UCMJ, Article 86 (unauthorized absence, place of duty) i.e. PRT makeup, Article 113 (misbehavior of sentinel) by leaving his post before being properly relieved, Article 117 (provoking gestures and speeches) by stating “I hate white people and I beat them up, white m__f__ers”, and Article 134 (drunk and disorderly).
	Award: Forfeiture of $197 per month for 7 days, restriction and extra duty for 14 days.  Forfeiture suspended, 3 months.  Restriction suspended, 2 months.  No indication of appeal in the record.

920111:	Applicant charged with violation of the UCMJ Article 91 (disrespect) on 11 January 1992.

920113:	Applicant charged with violations of the UCMJ Article 92 (failure to obey a lawful order) and Article 107 (false official statements) on 13 January 1992.

920121:	Applicant unauthorized absent from 0600 until 0645 on 21 January 1992.

920218:	Applicant unauthorized absent from 1045 until 1420 on 18 February 1992.

920219:	HM-14 Medical Department, Alcohol screening.  Patient has had two alcohol incidents in the last two years (picked up by police Dec ’90).  Alcohol dependant.  Recommend Level III treatment.  
  
920602:	Special Court Martial:
	Charge I: violation of the UCMJ, Article 92 (fail to obey a lawful general order).
	Charge II: violation of the UCMJ, Article 107 (false official statement).
	Charge III: violation of UCMJ, Article 86 (unauthorized absence): 
	Specification 1:  Absent from unit 0600-0645, 21 January 1992.
	Specification 2:  Absent from unit 1045-1420, 18 January 1992.
	Charge IV: violation of UCMJ, Articles 91 (disrespectful in language).
	Findings: to Charge I, II, III, and IV and specifications thereunder, guilty.
	Sentence: Confinement for 30 days, forfeiture of $100 per month for 2 months.
	CA 920717: Sentence approved and ordered executed.

920602:	Applicant to confinement.

920702:	Applicant released from confinement and placed on administrative leave.

920702:	Commanding Officer, Transient Personnel Unit, Norfolk, VA notified Applicant of intended recommendation for discharge by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct as evidenced by service record entries.  The least favorable characterization of your service may be under other than honorable conditions.

 920702:	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.  Applicant did not object to this separation.

921217:	Commanding Officer, Transient Personnel Unit, Norfolk, VA recommended to Chief of Naval Personnel the discharge of AA A_ M. S_ (Applicant) under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct.  Commanding Officer’s comments:  “…it is recommended that AA S_ (Applicant) be separated with an other than honorable discharge”.

930114:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

040720:	NDRB documentary record review Docket Number ND04-00126 conducted.  Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19930205 under other than honorable conditions for misconduct due to a pattern of misconduct (A).  After a thorough review of all available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).

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.  A under other than honorable conditions discharge is warranted when significant negative aspects of a member's conduct outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by three nonjudicial punishment proceedings and a special courts martial for violations of UCMJ Article 86 (unauthorized absence, 4 specifications), Article 91 (disrespect), Article 92 (failure to obey, 2 specifications), Article 107 (false official statements), Article 112a (wrongful use of a controlled substance), Article 113 (misbehavior of a sentinel), Article 117 (provoking gestures and speech), and Article 134 (drunk and disorderly).  Each violation of Articles 91, 92, 107, 112a, and 113 is considered the commission of a serious offense, as such is punishable by a punitive discharge if convicted by courts-martial.  A pattern of misconduct, the reason for the Applicant’s discharge, is defined by reference (A) as more than one nonjudicial punishment during a single enlistment.  There is credible evidence in the record that the Applicant was guilty of multiple infractions of the UCMJ.  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.  Separation under these conditions generally results in a characterization of service of under other than honorable conditions.  The Board could discern no impropriety or inequity.  Relief denied.

The Applicant contends that his characterization of service is inequitable based upon his service to society.  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 Naval service.  The NDRB is authorized 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, and certification of non-involvement with civil authorities.  The Applicant was allowed 14 days following the hearing to provide additional documentation for the Board’s consideration.  The Applicant submitted a letter from the Office of Federal Protective Service documenting his favorable recommendation as a contract guard and five letters of recommendation.  He also discussed his two children, common law wife, history of jobs, intention to begin attending Georgetown University in January, lack of criminal convictions and his volunteer work through rap music performing free concerts and giving away CD’s and video’s.  The Board commends the Applicant’s personal achievements and recognized his volunteer service to the community.  However, after careful consideration of the testimony and documentation, the Board concluded the Applicant’s post-service achievements have been insufficient to mitigate his misconduct while in the Naval service.  Relief denied. 
 
The Applicant alleges that he was authorized absent during period 06 Oct ’90 until 10 Oct ’90.  The Applicant bears the burden of presenting substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support his allegation.  The record does document his unauthorized absence and subsequent adjudication of the misconduct at nonjudicial punishment.  Furthermore, during testimony the Applicant accepted total responsibility for all misconduct documented in the record.    The NDRB found no impropriety in the Applicant's service characterization based upon this issue.  Relief denied.

The Applicant’s final issue contends that his neuropathy hampered his ability to perform his duties.  When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline.  The medical record documents the Applicants neuropathy.  It also documents his full duty status, directed by his attending physician.  The misconduct for which the Applicant was separated began before and continued to escalate following his neuropathy diagnosis.  Furthermore, the Applicant testified that he purposefully committed misconduct in a conscious effort to be discharged, in order not to be sent back to Bahrain.  The NDRB does not consider the Applicant’s condition to be of sufficient nature to excuse his misconduct.  In fact, the NDRB sees no connection between the Applicant’s misconduct and his medical condition.  Relief not warranted.

The following is provided for the edification of the Applicant.  The Applicant has exhausted his opportunities for review by the NDRB.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

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 V, Para 502, Propriety.

C.  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.