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

FOR OFFICIAL USE ONLY

 ex-SR, USN
Docket No. ND05-01027

Applicant’s Request

The application for discharge review was received on 20050601.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions).  The Applicant requests a personal appearance hearing discharge review before a traveling panel closest to Chicago, IL.  The Applicant did not designate a representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington National Capital Region.  The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060131.  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 and reason for 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 attached document/letter:

“Dear Sir/Madam

My name is F_ J W_ Jr. and this is a brief, yet detailed account of my entire time in the U.S.  Navy.

In 1990, I enlisted in the U.S. Navy as active duty military.  I was assigned to two (2) USNR ships.  I attended boot camp in Orlando, FL.  After boot camp, I went to YN “A” School at the Naval Air Station in Meridian, MS, where I received my certificate for Yeoman training.

I went to my First USNR ship; the “USS Fresno (LST-1182)” docked at the Naval Port in Long Beach, CA.  I had no idea what life would be like on-board a Navy ship; I only knew that I had to learn to adapt.

My father retired from the U.S. Army with 2l yrs and 9 months of active duty service.  I knew about the military before I went into the service but I knew nothing about the Navy.

When I arrived on-board the “USS Fresno (LST- 1182)” to report for duty, there was only one other Yeomen on-board ship and that was YN2 R_.  His job was that of taking care of the personnel on-board and Yeomen work.  He was the only office personnel on-board ship until I arrived to assist him.

YN2 R_ and I were each others backup on-board ship.  After morning muster, I would head down to the berthing for cleaning and then head to the ship’s office to help with the daily duties and then receive my training on Yeomen and personnel paperwork.  I knew this was my daily routine and I was eager to learn.  YN2 R_ trained me and we shared the office duties until the arrival of YN1 C_ and PN 1 T_.

Once aboard ship, YN1 C_ and PN1 T_ made the morale on the ship plummet.  This was difficult to cope with.  They caused a lot of confusion, dissension, and innuendoes.  This caused YN2 R_ to rely on drugs, which resulted in an early discharge from the Navy.  At one time YN2 R_ was highly regarded as a good sailor and awarded by the Captain of the “USS Fresno (LST- 1182)” before YN1 C_ and PN1 T_ came on-board and was allowed to cause discord in the office.

I did not rely on drugs even though it was difficult for me to work with YN1 C_ and PN1 T_ (they were trouble makers).  I was no longer allowed to work in the office.  I was instructed to keep doing the berthing clean-up, plus head duty.  I was also loaned out to other departments to wax decks and clean bulkheads.  All my training in personnel and office duties was history.  I was never allowed to do Yeoman again on the “USS Fresno (LST- 1182)” once the new personnel came on-board (YN1 C_ and PN1 T_).  I experienced discrimination for the first time in my life.  I had no where to turn under these circumstances and I went AWOL for thirty days.

I could not take anymore of YN1 C_ talking down to me saying, YN2 R_ did not train me properly and that’s why I was not welcome in the ship’s office.  They said that they did not have a spot or place for me in the office and also stated that they did not have a billet for me.  I felt unwelcome.  I tried to talk to YN1 C_ and PN1 T_ but they didn’t care to hear what I was saying and since they felt I was not trained suitably, they didn’t even offer to train me the way they felt I should be trained.

During my absence (AWOL), a new Captain took over the “US S Fresno (LST-1182).” The old Captain was aware of the situation and he left no information or instruction to the new Captain as to what was going on in the ship’s office.  While AWOL, I was so distraught about the circumstances of what had taken place on-board the ship, I finally contacted my father.  My father was living in the state of North Carolina outside of Fort Bragg at the time.  My father notified his congressman and informed him of the poor treatment on the “USS Fresno (LST-1182).”

I came back to the “USS Fresno (LST- 1182)” with a new Captain on-board.  I was informed by the new captain at my Captain’s Mast, that they had received the letter from the Congressman from North Carolina.

I was given 60 days of restriction and loss of wages due to me being AWOL.  Before my 60 days was up, I was told by PN1 T_ to see the captain in his stateroom; while there, the captain told me that I was not supposed to have been aboard a USNR ship and that they had no billet for me.  I was told that I was going to an active duty ship with a promotion to YNSA.  The captain also told me that this was a learning experience and that this does not happen all the time.  He stated that I would be starting off with a new slate at the next ship, but that did not happen.

I went to the “USS Kirk (FF-1087)”in Long Beach, CA; this ship had just turned USNR which means I was right back in the same situation I had just left.  I went through the regular procedures such as a sea bag inspection.  I met with the captain of the “USS Kirk (FF-I087)” in his stateroom.  Fortunately, my military records had preceded me but unfortunately, I did not start off with a clean slate.  The captain read my previous records and I was automatically labeled a trouble maker.  The captain had already prejudged my character before I set foot aboard the ship.  I also believe that some of this treatment was retaliation from my father contacting our congressman.  I once again encountered discrimination and unequal treatment based on the opinion of other people on the previous ship “USS Fresno (LST-l182”).  This was like dejavu all over again.

In 1993, the “USS Kirk (FF-1087)” went on a West Pac to the gulf (Bahrain); I did very well with the West Pac.  After our return back to our home port of Long Beach, CA, I was informed by Lt P_, that I was not Navy material and that he and the captain of the “USS Kirk (FF-1087)” had discussed that I should attend separation classes to be separated out of the military.  Lt P_ also said that he and the captain of the “USS Kirk (FF-1087)” and decided that I should loose my Yeomen designator and get a “General Under Honorable Conditions Discharge”.  Since I had no recourse in the matter, I attended the separation classes under the “General Under Honorable Conditions Discharge.

On March 8, 1993, I became the proud father of a son, J_ M_ W_.  It was my responsibility to financially take care of my son but Lt P_ would not let me claim him on military paperwork as my dependent.  I am the biological father of Jordan and my name is on his birth certificate as his father.  He should been afforded the same privileges as any child with a military parent(s) such as financial help (an allotment) and enrolled in the DEERS program.

A few months after my son was born, he was diagnosed with meningitis and hospitalized.  I was not allowed to be there at the hospital.  The first 24 hours of meningitis is the most crucial period for a child.  I called and spoke to a Third Class Petty Officer of the deck and informed him of the situation.  I told him that I had to be at the hospital for at least the first 24 hours of the critical period of this disease.  The Third Class Petty Officer said that he understood and would put the information given to him in the ship quarterdeck log book and also pass the word to the officer of the watch.  Upon my return to the ship from the hospital, I was instructed to immediately go to XOI.  I was not given the chance to attend XOI; the Master At Arms said the Executive Officer of the “USS Kirk (FF-1087)” said that I was a flight risk and to send me to the Brig.  I was sent to the Brig for two days.  When I returned to the ship, I attended XOI where I was automatically found guilty.  I went to the Captain Mast and was found guilty and sentenced to two days of only bread and water.

Upon coming out of the Brig and being returned to the “USS Kirk (FF-1087)”, I was told I was being separated out of the Navy the same day.  As I said before, this was supposed to have been a “General Under Honorable Conditions Discharge.”  When I received my Discharge papers “General Under Honorable Conditions was on the paperwork but someone lined it out and wrote in “Other Than honorable and initialed it.

I feel that this type of discharge was illegal, and the treatment I received while in the Navy was cruel and unjust.  I am asking that this whole situation be investigated.”

Documentation

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

Statement of Awareness dtd April 16, 1993 (2 pgs)
Unauthorized Absence information Letter to Mr and Mrs F_ J. W_ dtd February 10, 1992
Counseling/Warning dtd June 25, 1992
Enlisted Performance Record
Counseling/Warning dtd July 30, 1992
Partial Notice of Administration Board Proposed Action dtd April 13, 1993 
Administrative Remarks (Commanding Officer’s NJP dtd  May 27, 1993)
Cover Letter from Department of Veterans Affair dtd May 18, 2005
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19900529 – 19900913		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19900914		Date of Discharge:  19930529

Length of Service (years, months, days):

	Active:    02  08  15  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:	30 days
	Confinement:			3 days

Age at Entry:  20

Years Contracted:  4 

Education Level:  12				AFQT:  42

Highest Rate:  YNSA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.1 (3) 		Behavior:  3.4 (3) 		OTA:  3.1 

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

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

UNDER OTHER THAN HONORABLE CONDITIONS/ Misconduct - Pattern of misconduct, authority:  MILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events: 

920124:	NJP for violation of UCMJ, Article 86:  Absence without leave.
Violation of UCMJ, Article 92:  Failure to obey a lawful order.
	Award:  Correctional Custody for 30 days, forfeiture of $392.85 pay per month for 2 months (all but $200.00 suspended for 6 months).  No indication of appeal in the record.

920127:	Retention Warning:  Advised of deficiency (Misconduct and failure to conduct yourself in accordance with the guidelines prescribed in the Uniform Code of Military Justice and unsatisfactory professional performance as evidenced by violation of UCMJ Article(s) 86 & 92), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920128:	Applicant to unauthorized absence at 0700 on 920128.

920130:	Forfeiture of pay awarded at NJP on 920124 vacated due to continued misconduct.

920227:	Applicant from unauthorized absence at 2230 on 920227 (30 days/surrendered).

920304:	NJP for violation of UCMJ, Article 86:  (2 specs), absence without leave.
Violation of UCMJ, Article 92:  Failure to obey a lawful order.
	Award:  Forfeiture of $392.85 pay per month for 2 months (suspended for 6 months), restriction and extra duty for 45 days.  No indication of appeal in the record.

920504:	Applicant transferred from USS Fresno (LST 1182) to USS Kirk (FF 1087).

920625:	Retention Warning:  Advised of deficiency (Poor military appearance: a continued need for new dungaree uniforms since reporting onboard; Poor accountability: Ineffectiveness at being at an appointed place at an appointed time.  This includes a documented unauthorized absence from 0730 24 June 92 until 1710 24 June 1992.  Lack of communication with the chain of command: Inability to keep the chain of command informed of important personal items that have affected work performance.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920730:	NJP for violation of UCMJ, Article 86:  Unauthorized absence.
	Award:  Restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

920730:	Despite incurring three NJP’s all concerning misconduct, you are being retained in the naval service based on the promise to avoid further misconduct and the Commanding Officer ‘s decision. However, the following deficiencies in performance and/or conduct are identified: (Absence without leave, failure to obey lawful order on 19 and 21 January 1992; Absence without leave (2 specifications), failure to obey a lawful order on 28 January and 3 February 1992; and unauthorized absence on 27 July 1992; for which you were awarded Commanding Officer’s NJP on 24 January 1992, 3 March 1992 and 30 July 1992.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

930319:	NJP for violation of UCMJ, Article 86:  Unauthorized absence.
	Award:  Forfeiture of $407.00 pay per month for 2 months, restriction and extra duty for 30 days (suspended for 3 months).  No indication of appeal in the record.

930413:	Applicant notified of intended recommendation for discharge by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense as evidenced by all punishments under the UCMJ and violation of the UCMJ article 92 (failure to obey other lawful order).  Applicant notified that the least favorable characterization of service possible is under other than honorable conditions.

930416:	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.  Applicant did not object to the separation.

930421:	Commanding Officer, USS Kirk (FF 1087) recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.  Commanding Officer’s comments:  “YNSR W_’s (Applicant) overall performance in KIRK has been substandard.  Despite countless reprimands and formal counseling designed to correct his documented failures in areas of personal appearance, motivation and accountability, he has failed to perform to even minimum acceptable Navy standards.  YNSR W_ (Applicant) is a friendly, conscientious individual who appears to get along well with others and even demonstrated a brief period of improvement during KIRK’s recent deployment.  However, his overall conduct reflects grossly inconsistent reliability and an extreme difficultly in understanding and properly executing even the simplest of orders.  YNSR W_ (Applicant) has been briefed on VA benefits.  I recommend a General Discharge under Honorable Conditions [“General” lined out, “OTH” written in per 21May phonecon from CMD].”

930524:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct pattern of misconduct.

930527:	NJP for violation of UCMJ, Article 86:  Unauthorized absence.
	Violation of UCMJ, Article 89: Disrespect towards a commissioned officer.
Violation of UCMJ, Article 90: Disobeying a commissioned officer.
	Award:  3 days confinement in brig with Bread and Water.  No indication of appeal in the record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19930529 by reason of misconduct due to a pattern of misconduct (A) 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 (B and C).  The Board presumed regularity in the conduct of governmental affairs (D).

By regulation, a discharge shall be deemed proper, unless it is determined that an error of fact, law, procedure, or discretion has substantially prejudiced the rights of the Applicant.  The Applicant was discharged under other than honorable conditions by reason of misconduct due to pattern of misconduct.  A review of the Applicant’s service record convinced the Board that a preponderance of evidence exists to support the Applicant’s basis for separation by virtue of his five nonjudicial punishments on 19920124, 19920304, 19920730, 19930319, and 19930527 and his three counseling/retention warnings on 19920127, 19920625, and 19920730.  The record further reveals that the Applicant was properly processed and notified for separation by reason of misconduct due to pattern of misconduct and commission of a serious offense on 19930413 with a least favorable characterization of under other than honorable conditions.  On 19930416, the Applicant waived his right to an administrative discharge board and on 19930421, the Commanding Officer, USS Kirk (FF 1087), recommended to BUPERS, that the Applicant be discharged under other than honorable conditions by reason of misconduct due to pattern of misconduct and commission of a serious offense.  On 19930524, BUPERS directed the Applicant’s discharge.  Based upon the above review, the Board unanimously concluded that the Applicant’s discharge processing was in substantial compliance with applicable statutes, rules, and regulations.  Despite the Applicant’s contentions, The Board could find no error of fact, law, procedure, or discretion that might afford the Applicant relief.  Thus, the Board concluded that relief is not warranted.

Regulations require that a Sailor’s characterization of service be based upon the member’s total performance of duty and conduct during the current enlistment.  Furthermore, there are circumstances where conduct or performance of duty reflected by a single adverse incident may form the basis of characterization for a Sailor’s overall service.  The incident need not result in formal punishment to be properly used to characterize a Sailor’s service.  When the service of a member of the U.S. Navy has met the standard for acceptable conduct and performance, it is appropriate to characterize that service as honorable.  An under other than honorable conditions discharge is warranted when a member's conduct involves one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service.  The Applicant’s service was marred by five nonjudicial punishment proceedings for violations of UCMJ Article 86, unauthorized absence, Article 89, disrespect toward s a commissioned officer, Article 90Disobeying a commissioned officer, and Article 92, failure to obey order or regulation.  Additionally, the Applicant was given multiple opportunities to correct his behavior by virtue of his three Page 13 counseling/retention warnings.  The Applicant’s misconduct reflects his failure to meet the minimum standards required for a general (under honorable conditions) discharge.  Relief is not warranted.

The Applicant implies that his processing was unjust because the Commanding Officer’s recommendation was for a general discharge and it was lined out and changed to read “OTH”.”  There is a presumption of regularity in the conduct of governmental affairs.  This presumption permits the Board to presume that the government’s agents acted in good faith, proceeded within the bounds of the law, and conformed their behavior to appropriate standards during the Applicant’s Naval service and subsequent administrative processing.  The Applicant bears the burden of establishing his issues through the presentation of substantial and credible evidence.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that this change was unjust.  The Board presumes the Commanding Officer’s intent was to recommend an under other than honorable conditions discharge and his initial recommendation for a general discharge was an administrative oversight.  Relief denied.

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.  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 5, effective 05 Mar 93 until 21 Jul 94), 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.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.  

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