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

Docket No. ND06-00090

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

FOR OFFICIAL USE ONLY

 ex-HTFR, USN
Docket No. ND06-00090

Applicant’s Request

The application for discharge review was received on 20050922.  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 did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060810.  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 documents/letters:

“My performance in the military was never less than exceptional when it came to completing assigned tasks.  I contributed 100% to my work and this statement has never been debated.  I saw allot of wrongdoing and possibilities for improvement in my previous command and I attempted with all I had to speak on these issues and make an improvement.  I wrote letters, initiated meetings, and even presented presentations to weed out these depleting conditions.  Because of my actions, I did step on toes and made myself a prime target for disciplinary action.  Although my infractions were minor, they combined to allow for a very unexpected punishment, which was my administrative discharge and loss of benefits.  Several at my command knew my intentions for college upon discharge, and several events that occurred have led me to believe that there were “personal reasons for such a punishment, so close to being off the ship.  I had the chance to appeal before a board while on the ship.  But please understand that I had been restricted to the ship for well over 90 days already and the circumstances were very stressfull.  We were still on deployment and to stand and appeal I would have had to wait another 90 days. (past EOS)  Please ask if further information is required.

1.  My Other than Honorable status was given to me based on an action that the command described as “reckless endangerment”.

This action occurred while in a liberty port in Italy, in which I was to depart the ship for terminal leave in two days.
Due to a faulty Freon detector, a Temporary standing order had been issued for personnel not to enter shaft alley without first completing the following:

1.  Two individuals must enter the space when performing work in that area
2.  The individuals entering shaft alley were permitted to first put their name, time, and reason for entering the space into the designated logbook in Central Control Station.

These orders were obviously put in place to make sure that no one got injured in the space without anyone aware of there location.

I had work to perform in shaft alley, and I was well aware of the temporary standing order.
I first went to Central, to fill out the required log to enter the space.  While filling out this log, it was clear to me that NO other personnel were at that time logged in to be in shaft alley.  Knowing that the space was empty, I gathered the many tools I would need to complete the work in the space.  Among my tools, I had a 2-pound air hose.  Due to the flexibility and lightweight characteristics of the hose, I did what had become common practice when working in that space.  I tossed the hose through the entrance.  The hose, which was rolled up, descended the narrow entrance down into the space.  It was slowed down by hitting the first safety net, Then again, by encountering the second.  Before the hose reached the bottom.  I noticed a hand quickly come into picture.  The hand was moving directly towards the path of the hose, and just as I was able to issue a warning shout, the hose collided with the Unknown person’s hand.  The man climbed the top of the ladder in extreme anger, and quickly wanted to know who had done it.  I confessed quickly and pleaded him to understand that due to the temporary standing order no one should have been in the space.  I apologized over and over and assured that he was not hurt, which he was not.  No matter my attempt he chose to be angry and he persisted to try and fight with me.  This was put to an end when his Chief Petty Officer intervened and took him away.  His Chief had been previously been a subject of a letter that I had written to my upper chain of command.  It was clear to my shipmates and I that this man “had it out for me”.  He first tried to write me up for disrespect following this event.  This attempt backfired when he realized that this path would get his sailor in trouble as well.  So that charge was dropped and his next charge left me with what I have now.  And that is the documentation stating that I was not a good enough sailor to receive an honorable discharge from the United States Navy.
Instead of Disrespect, my command gave me “reckless endangerment”.  I was called an “attempted murder”, scowled at, and privately threatened at numerous times while waiting to leave the ship.  Some members of the higher chain of command pulled me aside privately and told me that they were sorry for my verdict, that they understood, and that they wished there were something they could do for me.  Among the men who could clearly see the unjust punishment was the very master at arms that was in charge of me.
There definitely was something that someone could have done.
The sailor in shaft Alley was never reprimanded for having dually violated the temporary standing order.
No light was ever shed on this when considering my judgement for tossing the hose into the space.
The case was presented to our captain by the sailor involved and his Chief ONLY.  They did not allow my witnesses to speak about the incident, and I feel that the pressure was put on to make sure no body would speak in my defense.

When this case was presented at my Captains Mast, It was presented in such a malicious context, anyone listening would have easily been influenced to believe that I had not only done this on purpose, but that I had even planned it out prior.  I make no justification but I can assure you that nothing of this context would ever enter my mind.
Just as the majority of our fleet will make mistakes at one time or another, I too made my own.  I look over my enlistment and I feel that I honestly did very well.  If one were to review my service record, You would find that my offenses are minor, and that my GOOD conduct in the whole four years of service, does not deserve to be tossed aside because of the few times when I did falter.  There are many leaders still out there that would tell you they would love to have me in their command and on their team.  Please consider allowing me back my privilege to the GI Bill Because of the contribution that I did make to the United States Navy.  I have unimaginable ambition to go to college and really make a positive difference in this world but because of my discharge status I may never get to do that.  Please help me if you can.

J_ K_(Applicant)

Dear Sir or Ma’am,

Hello and thank you for providing me the system to be able to write this letter.  My name is J_ K_(Applicant) and I recently completed four years of service in the Navy.  The first portion of my enlistment was Onboard the U.S.S. Constellation [sic] CV-64, where we were actively engaged in the war.  My second command was the U.S.S Carney [sic], DDG-64.  It was there that only 2 days before flying home for terminal leave; I was severely punished for an offence in which critical aspects were very much overlooked.  I was on deployment then, but now feel that the other than Honorable discharge given to me was far too extreme.  I am now living in Missouri and am very enthusiastic about following a path to success.  I have received work with a good employer and have already received the companies spotlight sales award.  I do attribute my motivation to the Navy, However I am in very bad shape without help from the GI Bill.  My discharge date was the date in which I actually got out, so I did complete my full enlistment.  I paid in full the amount required in my first year of service towards the GI Bill.  In addition to this, I was not able to sell back the more than 50 days of saved leave that I had accrued while serving.  If anyone wants or needs to hear more details about my case, I will be happy to speak with them or write down the details.  I do strongly believe that my discharge was given largely in part to “bad blood” within my command, and I will stand behind my statement that I did serve four years to the best of my ability.  I was a good hard worker in the Navy and I feel that I did not walk away with what I rightfully earned.  Please help me to Change my discharge to Honorable conditions, or at least help me to waiver the G.I. Bill condition.  Thank you very much for taking the time to read this.  Below is my contact information.  Please tell me what I can do.

J_ R_ K_(Applicant)”

Documentation

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

Applicant’s DD Form 214

Evaluation Report & Counseling Record for the period September 2, 2003 to February 28, 2004

PART II - SUMMARY OF SERVICE

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

	Inactive:  None
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20010430		Date of Discharge:  20050428

Length of Service (years, months, days):

	Active:    03  11  29
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  18

Years Contracted:  4

Education Level:  12				AFQT:  54

Highest Rate:  HT3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.5 (2)			Behavior:  2.5 (2)		OTA:  3.0(2)

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

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: 

010430:	Pre-service waivers for age, one chart “c” petty theft non minor misdemeanor, seven chart “a” minor traffic violations granted.

030519:	NJP for violation of UCMJ, Article 81: Conspire with HTFN W____, USN, to commit an offense under the UCMJ, to wit: false official statement by entering false check out and check in times into the engineering liberty log book on 2 May 03.
Violation of UCMJ, Article 86: Unauthorized absence on or about 0001, 2 May 03 until on or about 1000, 2 May 2003.
Violation of UCMJ, Article 107: On or about 2 May 03 with intent to deceive, signed an official record to wit: engineering liberty log book, which record was totally false.
	Award:  Forfeiture of $250 per month for 2 months, restriction and extra duty for 14 days, reduction to E-2 (RIR susp x 6 mos.)  No indication of appeal in the record.

040728:	Retention Warning:  Advised of deficiency (Violation of UCMJ, Art. 91 Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer, Art. 92 Dereliction of duty.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

040729:	NJP for violation of UCMJ, Article 91: Insubordinate conduct toward a warrant, noncommissioned officer or petty officer
Violation 92: Dereliction of duty.
	Award:  Restriction and extra duty for 21 days, reduction to E-3 (susp 6 mts).  No indication of appeal in the record.

041228:	Reduction in pay grade awarded at NJP on 040729 vacated.

050111:	NJP for violation of UCMJ, Article 92: Failure to obey order or regulation.
Violation of UCMJ, Article 107: False official statements.
	Award:  Forfeiture of ½ months pay for 1 month (1 month suspended), restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

050111:	Retention Warning:  Advised of deficiency (Violation of UCMJ, Art. 92 Failure to obey order or regulation, Art. 107 False official statements.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

050121:	Applicant failed Physical Fitness Assessment.

050217:	NJP for violation of UCMJ, Article 86: Unauthorized absence.
Violation of UCMJ, Article 134: Reckless endangerment.
	Award:  Forfeiture of ½ months pay for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.
                        [Extracted from C.O.; USS CARNEY ltr of 25 Feb 05]

050221:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service under other than honorable conditions by reason of misconduct-pattern of misconduct.

050221:	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.

050225:	Commanding Officer, USS CARNEY (DDG 64) recommended discharge under other than honorable conditions by reason of pattern of misconduct.  Commanding Officer’s comments:  “HTFR K_(Applicant) has become an administrative burden in CARNEY.  With three NJP’S in a seven-month period, he has shown no attempt to correct his behavior.  Instead, he continues to disobey the orders of his superiors and displays a demeanor that negatively influences young, impressionable sailors and dismisses anyone who attempts to aid him in rectifying his behavioral problems.  Additionally, HTFR K_(Applicant) had developed a disregard for the safety of his shipmates and equipment onboard CARNEY.  Due to HTFR K_(Applicant)’s inability to adhere to military standards and his lack of respect for the Naval Core Values, I strongly recommended him for an Other-Than-Honorable Discharge.”

050322:	Commander, Carrier Strike Group SIX 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 20050428 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 states in the issue block of his DD Form 293 “My performance in the military was never less than exceptional when it came to completing assigned tasks”.  After review of the Applicant’s record it was discovered that the Applicant’s service was marred by nonjudical punishment proceedings on 20030519, 20040729, 20050111 and 20050217 for violation of UCMJ articles 81 (False Official statement), 86 (Unauthorized absence), 91 (Insubordinate conduct toward a warrant, noncommissioned officer or petty officer), 92 (Dereliction of duty), 107 (False official statement), and 134 (Reckless endangerment).   The Applicant’s records also contain two retention warnings.  The Applicant is advised that violation of UCMJ Article 91, 92, and 107 are considered serious offenses for which a punitive discharge is authorized and typically warrant’s a service characterization of under other than honorable conditions.   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 states “Several at my command knew my intentions for college upon discharge, and several events that occurred have led me to believe that there were personal reasons for such a punishment, so close to being off ship”.  The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  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 sustained community service, and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any 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.  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), Change 11, effective 
26 April 2005 until Present, Article 1910-140, 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 (insubordinate conduct toward warrant, noncommissioned, petty officer), Article 92 (failure to obey order or regulation), Article107 (false official statement). 

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