Author: CAP
Last saved by: joyce.meeks
Company: NCPB

Docket No. ND05-01524

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

FOR OFFICIAL USE ONLY

ex-ETSN, USN
Docket No. ND05-01524

Applicant’s Request

The application for discharge review was received on 20050912.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and that the Narrative Reason for Separation be changed to “MINOR DISCIPLINARY INF.”  The Applicant requests a documentary record discharge review.  The Applicant designated a private representative on the DD Form 293 but subsequently informed the Board that he elected to proceed with document review without representation.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060721.  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 General (Under 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:

“Applicant was unlawfully discharged from the United States Navy by his command.  please refer to the attached document titled “list of issues” for information.”

“Issue # 1:

Command failed to adhere to specific instructions in MILPERSMAN 1910-010, in violation of Applicant’s servicemember agreement and UCMJ.

Command did not follow MILPERSMAN 1910-010 instructions for ADSEP properly. Applicant (or ”member“ in question) alleges that due consideration was not given by command to member’s suitability to meet required standards of performance. Member did not meet criteria per this instruction for denial of transfer to Individual Ready Reserve. Member received inadequate periodic instruction on types of discharges.

Issue # 2:

Command failed to adhere to specific instructions in MILPERSMAN 1910-138, in violation of Applicant’s servicemember agreement and UCMJ.

Member was not processed for discharge in October 2002 following second NJP, per instructions in MILPERSMAN 1910-138. This action would have prevented commission of serious offense in October 2003, and may have resulted in member receiving an Honorable Discharge under this instruction.

Issue # 3:

Command failed to adhere to specific instructions in MILPERSMAN 1910-140, in violation of Applicant’s servicemember agreement and UCMJ.

Member was issued a total of three (3) NAVPERS 1070/6 13 warnings, contrary to instructions in MILPERSMAN 1910-140, which Applicant alleges was unlawfully used as the separation authority for his General Discharge Under Honorable Conditions for Misconduct-Pattern of Misconduct. This instruction clearly states that it is a” common error” for commands to issue a second NAVPERS 1070/613 warning following a member’s second NJP, and that to process for separation based on a pattern of misconduct after issuing a second such warning is not appropriate. Applicant alleges that the command violated the written procedures of this instruction further by assigning an incorrect SPD Code per MILPERSMAN 1910-140.

Issue #4:

Command failed to adhere to specific instructions in MILPERSMAN 1910-142, in violation of Applicant’s servicemember agreement and UCMJ.

Command failed to discharge ET3(SS) H_, M_ E., per MILPERSMAN 1910-142, who was found guilty of Indecent Exposure following NJP in July 2003. Petty Officer H_, who was on a leave status at the time he illegally entered Applicant’s barracks in an altered US NAVY uniform, exposed himself to another crewmember, in front of a video camera, and then assaulted Applicant. MILPERSMAN 1910-142 clearly states that processing for separation is mandatory under these circumstances. Applicant’s career was significantly jeopardized by this incident’s resultant NJP proceedings. Command unlawfully used MILPERSMAN 1910-142 to assign Applicant’s SPD Code as JKQ, which falls under a separation such as that should have occurred for ET3(SS) H_ under this instruction.

Issue # 5: 

Command failed to adhere to specific instructions in MILPERSMAN 1910-210, in violation of Applicant’s servicemember agreement and UCMJ. By incorrectly assigning an SPD Code of JKQ, command apparently attempted to complete dual processing for separation.

Issue # 6:

Command failed to adhere to specific instructions in MILPERSMAN 1910-212, in violation of Applicant’s servicemember agreement and UCMJ. Command failed to take into account all factors, thereby failing to give Applicant due consideration and process.

Issue #7:

Command failed to adhere to specific instructions in MILPERSMAN 1910-302, in violation of Applicant’s servicemember agreement and UCMJ. Command failed to give due consideration to member’s length of service, grade, aptitude, and physical and mental condition, thereby unlawfully denying the member’s right to due process.

Issue # 8:

Command failed to adhere to specific instructions in MILPERSMAN 1910-410, in violation of Applicant’s servicemember agreement and UCMJ. All misconduct of which the Applicant was found to be guilty via NJP was minor in nature, save for the final serious offense. Applicant requests that per this instruction, the evident conflict in procedures should result in Discharge Review Board’s finding the most favorable procedure to be MILPERSMAN 1910-138. Conflict presented should have resulted in a more favorable discharge for Applicant in 2003.

Issue # 9:

Command failed to adhere to specific instructions in MILPERSMAN 1910-708, in violation of Applicant’s servicemember agreement and UCMJ. Least favorable was the fact that Applicant was found guilty at NJP in 2003 of Dereliction of Duty, a serious offense. Yet, this is only referenced in the incorrectly assigned SPD Code of JKQ, not in the characterization of separation, which is listed as Pattern of Misconduct.

Issue # 10:

Command failed to adhere to specific instructions in MILPERSMAN 1910-806, in violation of Applicant’s servicemember agreement and UCMJ. Applicant received no such acknowledgement of service. Applicant’s performance was far from meeting any criteria that would define it as “poor” (recurring negative evals of 1.0 or lower, with no significant improvement).

Issue # 11:

Applicant requested transfer from command via XO LCDR K_, S_, USN, when Applicant’s security clearance came into question. Request was denied. While awaiting transfer to CONUS for separation in 2003, Applicant was told by CSS-15 Security Officer that he had allegedly “never had a clearance” and that the official record of his SSBI investigation, which was never completed, had “ probably been lost.” Applicant apparently served aboard SSN-705 and handled classified materials only under an interim Secret Clearance that had been authorized by the ship’s own Security Officer, LCDR C_, P_, USN, who was also the ship’s Navigator.

Issue # 12:

Applicant maintains that throughout his career, adequate attention was not given to necessary disciplinary actions which should have been taken towards other crewmembers, in light of their unquestionably evident violations of UCMJ, namely in their overt harassment of Applicant while he was serving aboard ship. This harassment had a deleterious effect on the Applicant’s ability to complete all qualification process, which he did complete despite such negative treatment and lack of general support from his fellow shipmates and direct superiors.

Issue # 13:

Applicant alleges that command had ample opportunity to transfer him from the command, including opportunity to assign Designator 8 and transfer him to a shore command, thereby increasing the chance of a rewarding career with the US NAVY, yet failed to do so in violation of Applicant’s rights. Had Applicant been allowed to leave command gracefully at an earlier date than October 2003, he might have had a chance at receiving an honorable discharge, base on his performance as a Petty Officer.”

The Applicant’s representative submitted no issues for consideration.

Applicant’s Remarks:  (Taken from the DD Form 293.)

“PLEASE REFER TO THE ATTACHED “PERSONAL STATEMENT” FOR APPLICANT REMARKS.”

From Applicant’s attached statement: 

“I joined the Navy in 1999 simply as a means of bettering myself.  Facing the dim prospects of a life waiting tables and scrounging for finances to go back to college, I instead elected to take advantage of the opportunity to publicly serve in the US Navy, and to earn the just rewards of doing so.  The time that I did serve has made me tremendously proud and grateful for the opportunity to be part of one of this nation’s top security forces.  I cannot, however, begin to express how disappointed I am with the way that I was treated by my direct superiors and fellow shipmates throughout my career, and particularly at my homeport command, along with what my disdainful resistance of that negative treatment ultimately led to.  The final outcome was my being unlawfully discharged from service while I had one year left on my commitment, one week from advancing to pay grade E-4, and three weeks to go until the completion of my initial term of service.  I would like to address in this statement the issues that I have with the way the command incorrectly and unfairly handled processing me for administrative separation, as I feel that the procedure was conducted poorly, and therefore was in violation of my rights as a sailor sworn to defend my country.  I feel that in particular my right to due consideration of my performance under the UCMJ, and per MILPERSMAN instructions was grossly and unnecessarily compromised.  The mishandling of the processing of my separation, I feel, directly impinged upon my freedom, as my discharge has had a deeply negative impact both on my personal reputation among my family, friends, and fellow citizens, and upon my ability to gain career employment which allows me to earn enough money to remain above the poverty level for income in my home state of New York.  This unauthorized impingement is irrefutably made evident by the fact that, rather than correctly following applicable and specific procedures for a specific type of administrative separation per MILPERSMAN instructions, the command chose to borrow from a handful of different policies which outline the correct procedures for implementing an authorized administrative separation, which resulted in improper processing and the inappropriate awarding of a general discharge, which does not reflect my commitment to service as evidenced in the record of my performance.  The discrepancies in the actions the command took to do so, clearly stand out when viewed more closely in line with the correct procedures that they should have used.
MILPERSMAN 1910-410 clearly states that when processing a member for discharge due to Multiple Reasons, misconduct should not take precedence as a reason for discharging personnel if the misconduct in question is minor in nature.  All of my offenses, except the one final serious offense, were minor in nature and therefore did not warrant discharge for Multiple Reasons, as no single offense or group of offenses of which I was found guilty warranted mandatory separation processing.  Nor did my record of disciplinary actions against me warrant a discharge even under the referenced policy that was used to process my separation, MILPERSMAN 1910-140.  According to the correct US Navy policy and instruction that should have instead been referenced, I might have been processed in October 2002, for a misconduct discharge characterized by Minor Disciplinary Infractions.  Rather than following these clearly outlined procedures correctly, the command mistakenly then issued a second NAVPERS 1070/613 warning following my second NJP, a mistake according to MILPERSMAN 1910-140, which also instructs that when a second such warning is issued in error, that any subsequent processing for Pattern of Misconduct is not appropriate.  There were actually three of these warnings issued to me throughout the length of my career, as is plainly evidenced in my service record.  The command also used the wrong SPD Code for my discharge under Pattern of Misconduct, which should have been JKA, and instead used the code for a discharge characterized by Misconduct-Commission of a Serious Offense, listed under MILPERSMAN 1910-142 as JKQ.  All the more pertinent is the fact that if I had been processed for these minor offenses correctly, after my second NJP in October 2002, I would not have been at the command or even in the Navy for that matter, when the serious offense was committed.  The bottom line is that all but one of my offenses were minor, none were criminal, and the serious offense, while itself did not warrant discharge, stood alone in relation to a supposedly qualified pattern of misconduct; my “ pattern” clearly was not.  Involuntary separation may not even have been appropriate or necessary at all by October 2003, but definitely would have been appropriate at a much earlier date and time under MILPERSMAN 1910-138.  It is my understanding that in improperly approving me for involuntary separation, the command failed to recognize my performance correctly as is my right under the UCMJ and MILPERSMAN.  Proper review of my performance may have resulted in my being possibly considered for a Suspension of Separation under MILPERSMAN 1910-222, at the very least.  Additionally, while none of my violations warranted mandatory processing for discharge, a fellow crewmember’s violation, of which he was found to be guilty in April 2003 and which did itself qualify for mandatory processing for separation under MILPERSMAN 1910-233 Indecent Exposure/Deviant Sexual Behavior, resulted only in his simply being fined and reduced one pay grade, despite his own record of poor performance and conduct.  This was an outrageous episode which got both of us sent to NJP, since the incident occurred after he illegally entered my barracks residence while on a leave status (see QMOW message in supporting documents file).  He was permitted to remain in the US Navy however, despite clear policy that calls for mandatory discharge.  In contrast, I was dismissed from all charges at that NJP as a result of my good performance.  This was according to the Squadron Commodore, who told me this personally when he was subsequently discharging me following my next NJP in October 2003.  It was this exact brand of failure on behalf of the command leadership to adhere to disciplinary procedures, that I feel resulted in my being improperly processed for involuntary separation.
In the Commanding Officer’s statement of my discharge paperwork, CDR Schmidt, Robert J., USN wrote that I “ displayed a consistent regard for the simplest military rules and regulations.  “I would like to point out that CDR Schmidt’s signature of approval was included on all of my qualifications listed in my service record, my Certificate of Advancement to E-3, my Certificate of Qualification in Submarine Warfare, and in my frocking letter authorizing me to assume the title and wear the uniform of Petty Officer Third Class in March 2003.  Were there any truth to what he said in terms of real violations being committed at the command, I most certainly would never have become qualified in anything, let alone warfare, and I would definitely not have been selected and approved for advancement to E-4, by the very same person who accused me of such disregard.  CDR Schmidt also accuses me of being in some way responsible for the command’s ” inefficient allocation of command time and resources “ that were expended in the interest of my “ improvement “ which, in light of his negative comments, should never even have taken place.  He wrote those words, even though he personally signed the very documents I have submitted and referenced.  It is utterly ridiculous that he would insert such a sentiment in his remarks.  While I will attest to the fact that my presence in the command was widely and incorrectly acknowledged as having a direct effect on the success or failure of the ship’s morale program, a parameter the control of which also fell outside the reasonable bounds of my assigned duties and responsibilities, I must say that the reason why I had more problems with other crewmembers to no avail, was only because I so frequently vocalized my own personal dissatisfaction with the grossly evident misuse of said time and resources, by others both superior and inferior to me, and who were and were not assigned to handle such matters in an official capacity.  Clearly there is no warrant for the mention of any such accusation, as I was never formally given management of the command’s time and resources as a responsibility, since it was never mine, nor should it have been.  It is my sincere feeling and perception that the issue being addressed had no place in this proceeding from an official standpoint of review, and I ask that the comment be permanently stricken from my official record.  CDR Schmidt then authorizes my separation incorrectly, stating that it is for misconduct due to a pattern of misconduct (all of which were minor offenses in nature, except for the serious offense, which was one instance and therefore does not constitute a pattern), and then he assigns a SPD Code of JKQ, which MILPERSMAN lists as appropriate for separation under Misconduct- Commission of a Serious Offense, versus the correct SPD Code for Misconduct-Pattern of Misconduct, which is listed as JKA, for when a serious offense is committed ( see REFERENCES ) at the end of a pattern of offenses that are not minor, unlike mine were.  This is not the way my discharge was processed, however, and it is my belief that a serious mistake was made on the behalf of the command.  Furthermore, the real circumstances surrounding the incident tag-out violation, which resulted in my being found guilty of Dereliction of Duty, should have included performance criteria (I had hung and cleared this tag many times successfully) and other pertinent data (not all commands require that this tag be hung during a battery charge), that did not qualify it as warranting separation.  Yet, that is just not what happened.
While it is my sincere belief that it was the command’s intention to discharge me correctly, however, I also believe that in addition to improperly processing my separation, the command faulted in its incomplete and unfair lack of review of my performance as separate from my conduct.  It is my contention that due consideration was not given to my length of service, grade, aptitude, and physical and mental condition, per MILPERSMAN 1910-010.  At the time of my last NJP, I was a fully qualified, ready sailor with a record of in-port and at-sea watch-standing, that was unblemished.  I was never charged with any criminal offense, civil or military.  I had no psychiatric problems, no issues were ever raised concerning my alcohol consumption, there were no existing spousal or family problems that I had, no automobile issues, no financial problems, and no overt character flaws.  This can all be determined upon correctly reviewing my service record, along with the documents that I have submitted as evidence supporting my argument.

NOTE: Please review the all of the following documents in the accompanying

LIST OF SUPPORTING DOCUMENTS

that are being faithfully submitted by me as evidence on my behalf.

It was also the command’s own fault when a second NAVPERS 1070/612 warning was issued following my second NJP in October 2002, also contrary to Untied States Navy policy, a so-called “common error” which occurred incorrectly and in violation of the Navy’s own written procedures, which were plainly not followed.  Here is the real nature of my argument for upgrading my discharge: had any alleged disciplinary problems of mine been dealt with properly, I would not have still been in the Navy when the serious offense was committed in 2003.  Yet somebody, for a third year in a row I went to NJP in October and a third un-required NAVPERS 1370/613 warning was issued.  This appears to make evident that the command failed to process me for All Reasons which warranted separation) as per MILPERSMAN 1910-210.  Fortunately for both myself and the United States Navy, this does contrast highly with my actual record of service, including my medical record, my physical fitness record, all of my completed qualifications, actual hours logged standing watch with zero incidents, my documented contributions to the command, and thus the general lack of any substantial preponderance of evidence that I wasn’t doing my job well at the time of my discharge, in relation to my performance.

During my time in the Navy, I was privileged to reflect upon my own personal heritage in relation to naval service.  My father, who was an ROTC Princeton ‘57 Naval Intelligence Officer, served aboard submarines out of Yokosuka as a Russian language translator.  Originally a pilot, his Rhodes Scholarship had to be put on hold so he could fly for the Navy at Pensacola.  In 1957, Hon. T_ G_, was one of several influential people that were “enlisted  “to help see my father on his way to Oxford, in any way he could.  This effort undoubtedly helped lead to my father being re-assigned to the intelligence community, and eventually to submarine duty in the Pacific Fleet, as a “spook “  Additionally, I discovered that my deceased grandfather, of whom I knew little, J_ P. S_ of Princeton, NJ, was for twenty years the president of Delaval Steam Turbine Co., out of Trenton, NJ.  Unbeknownst to me until my time aboard ship, when I saw one of Delaval’s gauges in operation in the engine room, his company was and is still a huge naval contractor that was sold to Transamerica Corp in 1966.  The outstanding, direct personal contribution by my granddad to the US Navy’s operational capability, and in particular the atomic submarine program, which he was officially credited for expanding at Delaval, was hard to ignore.  It was something of which I became instantly proud.  I also found the roots of some of my earliest American ancestors’ genealogy on the internet while residing at Portsmouth, noting that they were hardy and successful sailors who had inhabited Boston at Charlestown as early as 1639.  I felt compelled to share all of these wonderfully interesting findings with my shipmates, much to their unfortunate chagrin and distaste.  I was soon labeled “ Rich Boy ” by the Auxiliary Division, who frequently stated that it was their belief that I “ had probably never worked a day ” in my whole life.  They continued to say this to me, even after I showed them my resume and explained my prior job experience in detail.  Their constantly rude banter and ill-will towards me became something that would end up debilitating my reputation at the command, and ultimately hurting my career in the Navy, to the point that I was so sloppily discharged in 2003, despite the very real turnaround in performance that I had achieved.  I indeed became a sort of “ high-profile cum low-priority ” member of the ship’s crew, to say the least.  When Under Secretary of Defense Pete Aldridge visited the ship, in 2002, I was bizarrely chosen to ring the ship’s bell for his arrival, despite my supposed then-current status as the overall lowest ranking member in the command.  That is the person they chose to represent the command to a federal official--Dirtbag.  It seemed as though the whole oddly expressed point of their suspiciously phony “ hatred” of me, was that everybody knew I wasn’t really a dirtbag, which I plainly wasn’t.  They just wanted to treat me like one for some twisted reason I still don’t understand and will probably never figure out.

When I began seeking the career counselor for assistance in getting out of the submarine force, I was originally stonewalled. Then, after my performance picked up a bit, I decided to tell the CCC that I was interested in qualifying for White House duty.  He told me he was glad that I had set my sights on such a worthy goal.  I really felt that the decision was a sound one, as it seemed to sow the seed of positive change for me throughout the command.  Capt. J_ P. M_, USN, then Commodore of Squadron 15, told me at my requested pre-separation Commodore’s Mast in October of 2003, that part of the reason I was dismissed from NJP in April 2003, aside from the fact that I had done nothing wrong, was that I was doing so well as a Petty Officer in our command.  Capt. M_ stated to me that he had had the White House Communications Agency in mind for my next billet, but unfortunately my tag out violation had cost me such coveted duty and had instead resulted in my unfortunate, early separation, and that “ there was nothing he could do about it “.  This sounds to me like praise for a job well done, up to a point.  Why then, would the ship’s Captain claim in his remarks on my discharge that I had such a seemingly overall lack of regard for the standards of military rules, regulations and conduct?  The issue plainly was not about my poor performance, because my performance was not poor, not by the US NAVY’s own standards of what constitutes poor performance (consistent evals of 1.0 or lower).  It was about something else, something of which I was not aware, because it was not something that I was responsible for knowing and understanding.
On a lighter note, as part of the Navigation division, my positional authority truly did provide me with opportunities to contribute wholly to the entire command.  This included my voice as a regular feature during all of the routine alarms, 1MC announcements and tests that I always conducted, my experience as a Food Service Attendant aboard ship at sea, plus my assistance with the upkeep of the interior communications systems, the ship’s telephone, and the CCTV system, all integral components of the crew’s daily professional lives.  I was not short on positive input to my designated operational responsibilities, not by any means.  As the Movie Petty Officer, I enjoyed my authority very much, and I made endless contributions to make sure that morale needs were met by having the ship’s entertainment system running in an optimal state, which I am sure fell apart after I left.  Along with all of the watches that I stood without any incident, I made my qualifications a reality; watches including Petty Officer of the Deck, Radar Operator, Auxiliary Electrician Forward, Duty NAV/ET, Lookout and all others I stood as a qualified Petty Officer Select, ensured that everything was actually fine right before the commission of the” serious offense “ which was my tag-out violation took place-an incident surrounding my closing a single tag on a ventilation heater after completing a battery charge.  It certainly was not anything close to prisoner abuse, which incidentally carries the same charge as a serious offense under the UCMJ.
My career got off to a rocky start, but after I put behind me two other incidents which occurred and resulted in NJP, both of which were assaults on my person and involved my also allegedly ” inappropriate responses “ to them, I became able to move forward successfully, with the crew finally supporting me after so long.  However, this “improvement” was in essence a result of my improperly being kept in the Navy, when I should have been discharged or at least moved from the command, if not from the submarine community.  My earliest NJP violations clearly warranted my removal from the command; I will attest to that fact.  Not to mention that my security clearance was in question by Special Agent R_ C_ of Defense Investigative Services during most of my time at Portsmouth Naval Shipyard.  In a conversation with the ship’s XO LCDR K_, S_, USN in 2001, I told him that it was my belief that the trouble I was having with my fellow shipmates was the result of the direct influence upon my command reputation, of information about the DIS investigation that had been somehow made available to the rest of the crew.  I asked him to release me to a command that was appropriate for someone with my level of clearance.  He told me that he did not agree, and he dismissed the whole idea right then and there.  Had my request been granted, as was well within my rights, I might have had a better chance at having a rewarding career in the United States Navy.  As a matter of fact, while I was awaiting transit to CONUS from Guam in the week prior to my separation, the CSS-15 Security Officer informed me that I never had a security clearance.  When I asked him what happened to it, and how could I have been allowed on he boat, he told me that I had been granted an interim clearance and that the available record my SSBI investigation was “probably lost.  “From then on, I was no longer allowed inside CSS-15 headquarters without an escort.  It is plain as day that I should have been given a Designator 8 and sent to a shore command from Guam after my second NJP, where I surely would have had the opportunity to still earn an Honorable Discharge.  Instead, I suffered through the literal torture of remaining a Seaman Apprentice onboard, for a ridiculously long period of twenty-seven months.  The command claimed it was refusing to authorize my advancement to E-3.  I was even mysteriously advanced, then demoted in pay grade, from E-3 to E-2, prior to my ever having gone to any NJP proceeding for any violation whatsoever.  This happened in the fall of 2001, just before my first NJP ever, and right after I had been automatically advanced to E-3, as evidenced on my LES, in the spring of 2001.  The process of their denial of my advancement took place over all 27 months that I spent as an E-2; before, during, and after the loss of my given promotion to E-3 and beyond.  There is no official record of any disciplinary proceeding on file, which resulted in my being reduced from E-3 to E-2, and I was never informed that it was being reduced; it was just simply done away with, and my LES was changed.  In addition to all of this, just after 9/11/01, I lost half of my enlistment bonus when the stock I had invested it in, Dell Computer, dropped so low that my broker had to do a margin call on my account, just on the day that the market prices started coming back up to the same equitable levels as they were at prior to the attack.
The truth is very clear upon review, that this command could have taken a number of different courses of action, several of which would have more carefully upheld my rights to due process as a sailor, under the UCMJ.  My point is thus: that the best thing for me, considering that a proper review of my performance had been conducted which evidenced all of my unquestionably hard work, not only in adapting-to the military lifestyle but also in getting my qualifications completed, would have been to allow me to leave the command gracefully, an opportunity which I was unquestionably not afforded in any way.  Since the command did not do that for me, the next most favorable outcome for me would have been to involuntarily discharge me from the service, and award me an Honorable Discharge-Misconduct/Minor Disciplinary Infractions, with a separation code SPD: JKN.  I feel this would have best represented my faithful contributions and performance of my overall duties in service, based upon the information I have submitted as evidence.  Instead, the command improperly discharged a fully fit, well-qualified member of NAV DIV, at a time when overall manning and performance for the entire NAV OPS department were nearing dangerously low marks.  Since the charges that should have resulted in my original separation were minor in nature, and since at that time of initial qualification for discharge, the serious offense had not yet occurred, and since the serious offense in itself did not result in punitive action or alone warrant separation, I am asking this Discharge Review Board at this time, to find that it is warranted and appropriate to rule in favor of amending my involuntary separation’s characterization to at least the following:

Honorable Discharge---Misconduct/Minor Disciplinary Infractions SPD: JKN

I believe this to be the correctly least favorable outcome for my separation result, per United States Navy policy as stated in MILPERSMAN.

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

List of documents submitted
Applicants service record on CD-ROM
Document entitled “References” containing typed abstracts from MILPERSMAN articles (3 pages)
Applicant’s issues (3 pages)
Applicant’s personal statement (7 pages)
Copy of DD-214
Applicant’s resume 
Internet document entitled BC Degree Progress Online, retrieved September 1, 2006 (3 pages)
CUNY Brooklyn College account statement, dated August 30, 2005
Receipt for a credit card transaction on August 30, 2005
Twenty-two pages of MILPERSMAN articles, retrieved August 5, 2005
Staff Directory for COMSUBRON 15 from Oct. 2003
Copy of letter to Hon. T_ G_, Under Secretary of the Navy, dated February 18 1957 (3 pages)
Copy of letter to R_ D_, General Counsel at Dept. of Defense, dated November 11, 1957
Copy of two newspaper articles on J_ P. W_
Copy of Applicant’s birth certificate, dated May 11, 1972.
Copy of Applicant’s passport
Copy of performance evaluation for period ending July 15, 2001
Copy of welcome letter from Commanding Officer, USS DALLAS, dated August 5, 2001
Copy of letter regarding submarine qualification, dated July 26, 2001 (3 pages) Copy of Letter of Instruction addressed to Applicant, dated October 16, 2001 (2 pages)
Copy of Homeport Change Certificate, dated February 13, 2002
Copy 301 Craftsman qualifications card, incomplete, dated February 18, 2002 (5 pages)
Copy of Bravo Zulu from Commanding Officer, USS City of Corpus Christi, dated April 2, 2002
Copy of Certificate of Appointment to ETSN, dated August 12, 2002
Letter from ET1(SS) C_, to LT R_, regarding assessment Applicant’s qualification upgrade, undated
Copy of Ship’s Qualifications card, signed by the Commanding Officer on Feb. 18, 2003 (6 pages)
Copy of Certificate of Graduation from Geo Plotter course, dated February 7, 2003, unsigned
Copy of Quartermaster of the Watch qualification card, started on March 4, 2003
Copy of Submarine Qualification Certificate, issued March 6, 2003
Copy of performance evaluation for period ending February 28, 2003 (2 pages)
Copy of Petty Officer Indoctrination Course certificate, dated May 15, 2003
Copy of “frocking letter,” dated May 9, 2003
Copy of message from USS CITY OF CORPUS CHRISTI, dated July 9, 2003
Copy of Below Decks Watch Qualification card, started on August. 1, 2003 (6 pages)
Partial copy of letter recommending the administrative separation of the Applicant, undated
Copy of letter directing the  Applicant’s discharge, dated October 24, 2003
Four pages from Applicant’s service record
Copy of page 1 of Applicant’s IRS form 1040 for tax year 2004
Copy of Certificate of Eligibility For Loan Guaranty Benefits, dated May 25, 2005
Copy of my Certificate of Completion from The Military Training Network Certificate of Completion for Resuscitative Medicine Training Programs, issued June 4, 2003
Copy of New York State Driver’s License, issued May 21, 2004
Copy of CUNY Brooklyn College Student ID for Fall 2004

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19991214 - 19991220	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19991221		Date of Discharge:  20031124

Length of Service (years, months, days):

	Active:    03  11  04
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  27

Years Contracted:  4 (24 month extension)

Education Level:  12				AFQT:  86

Highest Rate:  ET3(SS)

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0 (2)			Behavior:  2.0 (2)	OTA:  2.57

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

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

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

Chronological Listing of Significant Service Events: 

000217:	Recruit Evaluation Unit, Branch Clinic 1017, Naval Hospital, Great Lakes, IL by C. F. A_, Ph. D., Clinical Psychologist.
	Diagnosis:  AXIS I: Occupational problem.
	Recommendation:  Return to duty.

000707:	Applicant on unauthorized absence at 0630 to 1430 on 000707.

011016:	NJP for violation of UCMJ, Article 86: Unauthorized absence.  In that ETSA(SU) M_ C. S_(Applicant), USN (social security number deleted) did, inport, in Portsmouth, NH, on or about 4, 10, 12, 26 September 2001 onboard USS CITY OF CORPUS CHRISTI (SSN 705) without authority absent himself from his place of duty at which he was required to be: to wit: USS CITY OF CORPUS CHRISTI (SSN 705), Portsmouth, NH, and did so remain absent until located by Duty Section Leader or Divisional Leading Chief Petty Officer.
	Award:  Restriction and extra duty for 30 days, reduction to E-1, oral admonition.  Reduction suspended for 30 days.  No indication of appeal in the record.

021009:	NJP for violation of UCMJ, Article 134:  Disorderly Conduct:  In that ETSN S_(Applicant) on board USS City of Corpus Christi did on or about 2 October 2002 did get into a physical altercation with MM2 C_ which was of a nature to bring discredit upon the armed forces.
	Award:  Reduction to E-2, written reprimand.  No indication of appeal in the record.

021024:	Medical evaluation by J. W. S_, LT MC, USNR:
	Assessment:
	AXIS I:  None
	AXIS II: ? PD NOS, not definite.
	AXIS III:  S/P L tibial.
	AXIS IV: Routine, submarine life.
	AXIS V: GAF 85.
	Plan:  Continue to monitor.  If worsens, consider formal psychiatric eval for further diagnosis/Dx.

021122:	Retention Warning:  Advised of deficiency (Disrespect to senior petty officers on at least two occasions, late for muster, increasing risk of missing ship’s movement, demonstrated poor watch standing on at least two occasions, one of which seriously jeopardized ship’s safety (inadvertently opening breaker  EH power) and caused disruption within the piloting party), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

030718:	Retention Warning:  Advised of deficiency (Continued to display disrespect to senior petty officers, counseled numerous times for job performance and continued to have altercations with shipmates that have been disruptive to ship’s operations.  As a result Applicant had to be removed from the piloting team.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.  

031008:	NJP for violation of UCMJ, Article 92: In that ET3(SS) M_ C. S_(Applicant), U.S. Navy, USS CITY OF CORPUS CHRISTI, on active duty, who knew of his duties onboard USS CITY OF CORPUS CHRISTI, on or about 2 October 2003, was derelict in the performance of those duties in that he negligently failed to follow proper procedures for clearing a danger tag, as it was his duty to do.
	Award:  Forfeiture of $300 per month for 1 month, oral admonition.  No indication of appeal in the record.

031016:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct: Pattern of Misconduct.

031017:	Applicant advised of rights and having elected 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.

031024:	Commander, Submarine Squadron 15, authorized Applicant’s general (under honorable conditions) discharge by reason of misconduct-pattern of misconduct.  Commanding Officer’s comments:  “ETSN S_(Applicant) has displayed a consistent disregard for abiding by the simplest of military rules and regulations.  Despite being given several chances to reform his conduct, his most recent award of nonjudicial punishment highlights his inability to mold his conduct to expected standards and the inefficient allocations of command time and resources for his improvement.  However, I do not believe his pattern of offenses merit an Other than Honorable Discharge.  I authorize his separation from the Naval Service with a characterization of General (Under Honorable Conditions) by reason of misconduct due to pattern of misconduct with an SPD Code of JKQ and a reenlistment code of RE-4.

031110:	Applicant found medically qualified for separation.

040426:	CNPC directed the issuance of DD 215 to reflect correct SPD Code of JKA.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20031124 by reason of misconduct due to a pattern of misconduct (A and B) with a service characterization of general (under 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 or general 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 two retention warnings and three nonjudicial punishment proceedings for violations of Articles 86, 92 and 134 of the UCMJ.  The Applicant’s violation of Article 92 of the UCMJ is considered the commission of a serious offense.  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 NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted.  The Applicant was notified of his Commanding Officer’s intention to separate the Applicant by reason of misconduct due to a pattern of misconduct.  The Applicant met the criteria for discharge by reason of misconduct due to a pattern of misconduct.  Commander, Submarine Squadron 15, authorized the Applicant’s general (under honorable conditions) discharge by reason of misconduct due to a pattern of misconduct.  No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged.  To change the Narrative Reason Separation would be inappropriate.  Relief denied.

Issue 1.  The Applicant contends that “due consideration was not given by command to member’s suitability to meet required standards of performance.”  The Applicant also contends that the Applicant did not meet the criteria for denial of transfer to Individual Ready Reserve (IRR).  There is no evidence in the record or in the documentation submitted by the Applicant that the Applicant did not receive due consideration with respect to his suitability to meet required standards of performance.  Further, MILPERSMAN 1910-010 indicates that members being separated who have any potential for future mobilization will normally be transferred to the IRR.  The Board found that, though MILPERSMAN 1910-010 explicitly states that certain members will not be transferred to the IRR, nothing obligated the Navy to transfer the Applicant to the IRR.  As the Applicant was being separated by reason of misconduct due to a pattern of misconduct, the Board did not find the Commanding Officer’s decision not to recommend the Applicant for transfer to the IRR improper or inequitable.  Relief denied. 

Issue 2.  The Applicant contends that his discharge is improper because he was not processed for discharge in October 2002 following his second NJP, per instructions in MILPERSMAN 1910-138.  The Board found that the Applicant’s issue is without merit.  MILPERSMAN 1910-138 indicates that members may be processed for separation under the listed criteria.  Though the Applicant may have met the criteria for discharge under MILPERSMAN 1910-138, the Navy is not obligated to process members for separation because they meet the minimum criteria.  Relief denied.

Issue 3.  The Applicant contends that his discharge is improper because he was processed for discharge after receiving multiple NAVPERS 1070/6 13 warnings.  The Board found the Applicant’s issue without merit.  MILPERSMAN 1910-140 does not prohibit the issuance of multiple retention warnings nor administrative separation after multiple retention warnings.  MILPERSMAN 1910-140 indicates, however, that if a member is given a retention warning, he is essentially “given another opportunity” by his Commanding Officer.  The Applicant’s last retention warning was given on 20030718.  This retention warning, in accordance with MILPERSMAN 1910-140, constituted yet another opportunity for the Applicant.  The Applicant violated this retention warning, making him eligible for separation by reason of misconduct due to a pattern of misconduct evidenced by his nonjudicial punishment on 20031008.  Relief denied.

Issues 4-5, 9.  The Applicant contends that his discharge is improper because his command failed to discharge another sailor after the sailor allegedly “exposed himself to another crewmember.”  The Applicant further contends that his career was “significantly jeopardized” by this incident and that the Applicant’s command “unlawfully” used MILPERSMAN 1910-142 to assign his SPD code of JKQ.  The Board found the Applicant’s issue without merit.  The Board could find no connection between the command’s decision not to process another member for separation by reason of misconduct and the command’s decision to process the Applicant for his violations of the UCMJ.  Further, the Board notes that CNPC directed that the Applicant be issued a DD 215 with an SPD Code of JKA to correct the administrative error on the Applicant’s DD 214.  Relief denied.  

Issue 6.  The Applicant contends that his command failed to consider the seriousness of his offenses, likelihood of recurrence, potential for his further service and his military record.  There is no indication in the record or in the documentation submitted by the Applicant that his command failed to consider the factors listed in MILPERSMAN 1910-212.  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.  Relief denied.

Issue 7.  The Applicant contends that his command failed to adhere to MILPERSMAN 1910-302 because his length of service, grade, aptitude and physical and mental condition were not considered.  There is no indication in the record or in the documentation submitted by the Applicant that his command failed to consider the factors listed in MILPERSMAN 1910-302.  The record shows the Applicant was responsible for the commission of a serious offense, an act punishable by punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial.  However, the Applicant’s command did not pursue the Applicant’s commission of a serious offense at special court-martial or recommend an under other than honorable conditions discharge.   Therefore, the Board found the Applicant’s service characterization of general (under honorable conditions) proper and equitable.  Relief denied.

Issue 8.  The Applicant contends that his command failed to follow the instructions under MILPERSMAN 1910-410 in that all his offenses were minor, except the serious offense.  The Board found the Applicant’s issue without merit.  MILPERSMAN 1910-410 applies to member’s being processed for multiple reasons.  The Applicant was processed for administrative separation by reason of misconduct due to a pattern of misconduct only.  Relief denied.

Issue 10.  The Applicant contends that his discharge was improper because his command failed to convey expressions of appreciation in accordance with MILPERSMAN 1910-806.  The Board found no indication from the service record and documentation provided by the Applicant that his command failed to comply with MILPERSMAN 1910-806.  Further, command compliance with the requirements of MILPERSMAN 1910-806 has no bearing on the Applicant’s misconduct and, therefore, does not provide for relief on the basis equitability or propriety.  Relief denied.

Issues 11, 13.  The Applicant implies that his discharge was inequitable because he was not allowed to transfer from his command when he requested to do so.  The Applicant also implies that his discharge is inequitable because he allegedly served aboard SSN-705 with an interim clearance.  The Board could discern no impropriety or inequity in the Applicant’s discharge as a result of the Applicant’s contentions.  While the Applicant may feel that his inability to transfer or his interim clearance 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.

Issue 12.  The Applicant contends that his discharge is improper because members of the crew were not subject to “necessary disciplinary actions.”   There is no evidence in the record or in the documentation submitted by the Applicant that the Applicant was treated unfairly or incorrectly.  Furthermore, the Board could find no connection between the Applicant’s misconduct and the alleged misconduct of others.   While the Applicant may feel that the actions of his crewmembers 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 following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 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.  As of this time, the Applicant has not provided sufficient post-service documentation for the Board to consider.  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), re-issued October 2002, effective 22 Aug 2002 until Present, 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 92, willful dereliction in the performance of duties.

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