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Docket No. ND05-00933

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

FOR OFFICIAL USE ONLY

ex-OSSN, USN
Docket No. ND05-00933

Applicant’s Request

The application for discharge review was received on 20050513.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant designated the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060413.  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 by reason of misconduct due to a pattern of misconduct.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application and/or attached document/letter:

“Dear Members of the Board,

I am requesting that my Other Than Honorable discharge be upgraded to an Honorable.

My period in the Navy is marked by both periods of honor and instances of poor decisions.  I am thankful that, for the most part, that I had patient yet firm leadership that helped me adjust to both the military life and my life’s changing circumstances.  Please note that during times of conflict, while at sea I served both professionally and honorably.  In only a few instances while in port did I succumb to a lack of judgment that would certainly require discipline but not administrative separation and an other than honorable discharge.

I had approximately six months left on my enlistment when I was administratively discharged from the US Navy.  I had recently returned from serving in the Persian Gulf Deployment, Operation Enduring Freedom/Iraqi Freedom.  After my return, I had a problem adjusting to life stateside and I had family problems as I married and found out that I was going to be a father all in a two month period.  I was under severe pressure.  At that time I feel that I did not care whether I was in the Navy or not.  Parts of my life at that point are vague and my memory of that time is inconclusive.

I have spent a lot of time reflecting on the period directly after my return from overseas duty and my administrative separation from the Navy.  In order to better understand what happened, I requested my files from the Military.  After reviewing these records, I feel that my conduct may not have warranted an other than honorable discharge.  A careful reading of my Evaluation Report and Counseling record from 02JULto03JUN15 and dated 12JUN03 only months before my Other Than Honorable Discharge stated “H_(Applicant) is becoming an outstanding Operations Specialist and Junior Petty Officer...” and Petty Officer has shown great improvement over the last reporting cycle...” Additionally, the recent Report states in part that, “...his(H_(Applicant)’s) developing leadership and his aggressive sense for attention to detail are setting the example for junior sailors within 01 division to follow...”  This positive review was directly after my return from the Persian Gulf Deployment, Operation Enduring Freedom/Iraqi Freedom.

It is hard to understand how my Evaluation Report and Counseling Record 03Junl6to 04Jan30 a few months later comments in part that, “H_(Applicant) during this reporting period has become a burden on the 01 division.  He has displayed a total lack of teamwork and leadership skills.  He has failed to display the type of behavior and character that is needed of a second class petty officer.” It is hard to believe that these reviews are of the same man and were written merely months apart.

One can see that there was some type of problem.  It may have been that I had a problem adjusting to stateside duty after serving in Operation Enduring Freedom/Iraqi Freedom.  It may have been that I had family problems with a pregnant wife.  I am not sure at this time.

In January there are two infractions listed.  I did not remember the first one, however my mother did.  After she told me I did remember.  I do remember falling asleep on guard duty.  As I explained earlier, my personal life was overwhelming.

Commander P_ gave me 45 days restriction and I lost my promotion to E-5.  I was told by another Operational Specialist that Chief H_ said that if H_ (Applicant) stays on this ship I’m not.  I know this is hearsay, however, knowing how Chief H_ felt about me, I do believe he made that comment.

At this point all I can say is that Commander P_ left the USS Ponce LPD 15 in February and in March I was being served with an Administrative Discharge, with Other than Honorable conditions.  I have searched my records over and over, and feel that my Other Than Honorable is an injustice.  I do not talk about that period in my life, however, one thing I am sure of is when I was called upon to serve my country in Operation Iraqi Freedom there is nothing in the record to reflect that I served other than honorably, in fact my review was very positive for that period.  In addition my record shows that there were no infractions of the UCMJ during that period.

I was in middle of my 45 days, and only had 6 months left.  I feel that it is grossly unfair that a new Commander with Chief H_’s advice was able to do this.

I have a son and want to be able to tell him I did serve my country with Honor.  I consistently grew under good leadership during my time in the Navy.  It means everything to me to be able to say I served my country Honorably and for this to be reflected on my DD214.

I thank you for your time and will wait the decision.

Respectfully,
[signed]
N_ H_(Applicant) III

Upon returning from the war I was experiencing family problems.  I was ordered 45 days restriction and demoted.  Upon the arrival of a new Commander I was served an Administrative Discharge under Other than Honorable conditions for misconduct.  I feel my Other Than Honorable Discharge is unjust.  I was serving my punishment and needed council but not an Other than Honorable Discharge.  I had grown into a good sailor because of good commanders.  I would have completed my 6 months with Honor,, Please review my records and restore this to me - I thank you and pray justice will prevail.
Respectfully,
[signed] N_ H_ III (Applicant)”

Representative submitted no issues.

Documentation

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

VA Form 21-22, Appointment of Veterans Service Organization as claimant’s representative, undtd (3)
Cover letter from the American Legion, dtd May 3, 2005
Letter from the American Legion forwarding supporting documents, dtd May 6, 2005
Applicant’s DD Form 214
Letter from Applicant to the American Legion, dtd May 26, 2005 (2)
Letter from Applicant to the American Legion, undtd
Letter from the Applicant, dtd September 2, 2005
Lake Michigan College student schedule Fall 2005
Letter from the American Legion forwarding supporting documents, dtd February 24, 2006
Letter from the Applicant, undtd
Lake Michigan College WaveLink Services Final Grades, dtd January 3, 2005
Lake Michigan College student schedule, dtd February 4, 2006
Character Reference ltr from A_ D. H_, Applicant’s wife, dtd February 3, 2006
Letter from the Applicant to the American Legion, undtd
Character Reference ltr from J_ B_, Applicant’s mother, undtd
Character Reference ltr from A_ C_, M. Ed, Kindergarten Teacher, Sterne Brunson Elementary, dtd January 3, 2005
Character Reference ltr from S_ D_, dtd March 4, 2005
Character Reference ltr from R_ B_, undtd
Character Reference ltr from E_ A. R_, dtd April 24, 2005
Memorex CD-R
List of service record documents
Sixty-six pages from Applicant’s service record
Fifty-six pages from Applicant’s medical record
Thirty pictures from Applicant
Newspaper article

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20001010 - 20001024	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20001025		Date of Discharge:  20040311

Length of Service (years, months, days):

	Active:    03  04  17
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  20

Years Contracted:  4

Education Level:  12				AFQT:  63

Highest Rate:  OS3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.3 (3)			Behavior:  2.0 (3)		OTA:  2.23

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Navy “E” Ribbon, National Defense Service Medal, Sea Service Deployment Ribbon

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority:  MILPERSMAN, Article 1910-140 (formerly 3630600).

Chronological Listing of Significant Service Events: 

001010:	Pre-service waiver for drug (marijuana) granted.

001025:	Pre-service waiver for physical requirements (underweight) granted.

010817:	NJP for violation of UCMJ, Article 91 (2 specs):
	Specification 1: Willful disobedience of warrant, non-commissioned or petty officer.
	Specification 2: Contempt or disrespect toward warrant, non-commissioned or petty officer.
Violation of UCMJ, Article 92: Failure to obey other lawful order.
Violation of UCMJ, Article 128: Simple assault.
Violation of UCMJ, Article 134: Disorderly conduct, drunkenness.
Date of Offense: 17 August 2001
	Award:  Forfeiture of $482 per month for 2 months, restriction and extra duty for 45 days, DAPA screening.  No indication of appeal in the record.

010817:	Retention Warning:  Advised of deficiency (CO’s NJP of 17 Aug 01 for VUCMJ, Article 91 (Willful disobedience of warrant, non-commissioned or petty officer); Art 91 (Contempt or disrespect toward warrant, non-commissioned or petty officer); Art 92 (Failure to obey other lawful order); Art 128 (Simple assault); and Art 134 (Disorderly conduct, drunkenness).), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

011030:	Retention Warning:  Advised of deficiency (Apprehension for drunk and disorderly behavior while inport Rijeka, Croatia.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

020221:	Retention Warning:  Advised of deficiency (Contributing alcohol to a minor on or about 15 Dec 01.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

020531:	NJP for violation of UCMJ, Article 108 (3 specs): Destroying military property.
Date of Offense:  24 April 2002
	Award:  Forfeiture of $607 per month for 2 months, correctional custody unit for 30 days, reduction to E-2.  Forfeiture for 1 month and reduction suspended for 6 months.  No indication of appeal in the record.

020718:	Retention Warning:  Advised of deficiency (CO’s NJP of 31 May 02 for three counts of VUCMJ, Article 108 (Damaging, destroying or losing military property.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

020917:	Disciplinary Review Board: Violation of UCMJ, Article 86: Failing to go or leave place of duty and violation of UCMJ Article 113: Misbehavior of sentinel or lookout.
	Date of Offenses: 21 August and 25 August 2002
	Disciplinary Review Board Recommendation: EMI 28Sep-05Oct02 will consist of mustering outside the CPO mess at 0630 and will stand the 16-20 topside rover watch, except for Sunday 29 Sept 02 and PG13 Administrative Counseling and Warning.

020920:	Retention Warning:  Advised of deficiency (DRB of 17 Sep 02 for VUCMJ, Article 113 (Misbehavior of sentinel or lookout.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

021024:	Retention Warning:  Advised of deficiency (Violation of Page 13 as directed and signed on 20 Sep 02, in that SN H_(Applicant) was to muster outside CPO Mess at 0630 28 Sep - 05 Oct and was also to stand the 1600-2000 Topside Rover watch for two weeks to exclude Sunday the 28^th of September.  SN H_(Applicant) DID NOT COMPLETE HIS EMI AS WAS SAID TO DO SO.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

021218:	Retention Warning:  Advised of deficiency (a. Failure to complete Command initiated Alcohol Rehabilitation Program because of non-compliance.  b.  SR VMBR was sent to LEVEL III for help with drinking problem and caused such a distrubance in his treatment class that after several instances, SVRMBR was released back to parent command.  c.  Non-compliance included but not limited to the following: a. Failure to make scheduled treatment appointments on time.  b. Making physical threats to a duty officer.  c.  Failure to do assigned homework.  d.  Failure to make contact with assigned AA counseling partner.  e.  Excessive use of foul language.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

040122:	Applicant on unauthorized absence 1500-1800, 040122.

040129:	NJP for violation of UCMJ, Article 113:
	Specification: Misbehavior of sentinel or lookout.
Violation of UCMJ, Article 92: Dereliction in the performance of duties.
Violation of UCMJ, Article 86: Absence from unit or place of duty.
Date of Offenses:  15 January 2004 and 22 January 2004
	Award:  Restriction and extra duty for 45 days, reduction to E-4.  No indication of appeal in the record.

040212:	NJP for violation of UCMJ, Article 121:
	Specification: Larceny.
Violation of UCMJ, Article 108: Military property of the United States – sale, loss, damage, destruction, or wrongful disposition.
Date of Offenses:  1 February 2004
	Award:  Restriction and extra duty for 45 days, reduction to E-3, ADSEP – Other than honorable.  No indication of appeal in the record.

040213:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to pattern of misconduct.

040213:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

040213:	Commanding Officer, USS PONCE (LPD 15) recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by four nonjudicial punishments.  Commanding Officer’s comments:  “Despite counseling and warnings, OSSN H_ (Applicant) has continued to commit misconduct as noted above. OSSN H_ (Applicant) is either incapable, or simply unwilling, to adhere to the rules and regulations of this command and the U.S. Navy.  OSSN H_ (Applicant) is reluctant to conduct himself in a manner conductive to good order and discipline. I strongly recommend that OSSN H_ (Applicant) be separated from the naval service by reason of misconduct due to a pattern of misconduct, and that his characterization of service be Under Other Than Honorable.”

040311:	Commander, Amphibious Group TWO 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 20040311 by reason of misconduct due to a pattern of misconduct (A and B) with a service characterization of under other than honorable conditions.  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).  

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 7 retention warnings, 4 nonjudicial punishment proceedings for violations of Articles 91 (2 specs), 92 (2 specs), 128, 134, 108 (4 specs), and 121 of the UCMJ.  Additionally, the Applicant was awarded extra military instruction by a disciplinary review board for violations of Articles 86 and 113 of the UCMJ. 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 and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant contends that his problems in the Navy can be attributed to his "problem adjusting to life stateside and…family problems" after an overseas deployment.  While he may feel that his adjustment problem was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, 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, is considered.  The Applicant provided documents from Lake Michigan College, a character reference from Applicant’s wife, a character reference from Applicant’s mother, a character reference from a teacher the Applicant performs volunteer work for, a character reference from a co-worker, a character reference from the Applicant’s step-father, and a character reference from a military officer as documentation of his post-service.  The Board recognizes and applauds the Applicant’s post service contributions to the community. However, the Board determined that the documentation of post service conduct, in mitigation of service connected misconduct, should include: a verifiable employment record, evidence of drug free existence, and certification of non-involvement with civil authorities, in order for consideration for clemency based on post-service conduct.  At this time, the Applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge.  Therefore, no relief will be granted.  

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 additional evidence related to this 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), re-issued October 2002, effective 22 Aug 2002 until 25 April 2005, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

B.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as
part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 91, willful disobedience; Article 113, misbehavior of sentinel or lookout; Article 121, Larceny; and Article 108, Military property of the United States – sale, loss, damage, destruction, or wrongful disposition.

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