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

FOR OFFICIAL USE ONLY

 ex-AR, USN
Docket No. ND06-00242

Applicant’s Request

The application for discharge review was received on 20051114.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area and a personal appearance discharge review before a traveling panel closest to Pasadena, CA.  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 Washington DC at the Washington Navy Yard.  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 20060621.  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 General (Under Honorable Conditions) by reason of misconduct due to commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

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

“I realized I had made mistakes, and tried to correct them.  I had no assistance as far as the direction I should have gone toward completing a 20 yr term.”

“I am D_ E. V_ (Applicant) II,

I served for close to two and a half years in the U.S.N. I have been out for a year now, and I am Respectfully Requesting that my record be reviewed for a change in my service record.  I am respectfully requesting this because I signed up in the military to serve a life term.  The problems that I ran into are not complicated, but hard to explain especially on paper.  I am willing to stand in front of the review board in DC if I am granted permission.  Enclosed are forms of NJP, the application for the review request, Evaluations, Harp Duty request forms, A letter that I wrote to my Congressman as the incidents were in their beginning stages, Request chits, and Classes / Qualifications that I took the liberty upon getting myself.  I took pride in everything that I was involved in, some of the things I did not enjoy all that much; however I do realize that things do not always go my way so I adjusted.  I stood watch on the flight deck at zero four hundred hours with a straight back, and my weapon ready to help me defend my ship at all costs.  I am a good man for the U.S.  Armed Forces please give me a chance to give back to my country for all it has given to me I feel that, that is the least I can do in doing my part.

If you will take special notice in the Dates that are present in the current documents that my journey to become an outstanding sailor Did Not start after my mistakes, but Before! As things started happening I had no (help) path leading the other way.  (As an E-1 Airman I had been with the weapons department upon arrival to the USS (GEORGE WASHINGTON.  I had put in requests for duty Swaps, and transfers but nothing.  This dept. is the same dept. that had the rumor of an Entire Captains Mass throughout the Division.  I heard this rumor in A School in Pensacola..

Once I served my mandatory time within the dept.  I decided that I wanted to be an OS, because most were going to A School and getting new orders.  So I studied, and when test time came, I took the OS test and passed.  When the results were put up on the wall next to the CMC’s office that day is when I got the first write up.  I went to DRB, and MY Departments Master Chief decided that I should go to XOI......  I also looked up some documents that enclosed No One from the sailors Department is to be on his DRB I tried to bring that factor up, but no response.  Other chiefs in other departments as well as weapons, that I have worked for did not think I should have gone to XOI, but were outranked by Master Chief B_.

Everything from there on out then became a tornado..  I respectfully request permission to re- enter the armed forces to continue with my term.

Thank you for your time

Sincerely,
D_ E. V_(Applicant) II”

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

“All of the situations that happened, happened after results of the frocking exams.  I had not been in any major trouble. In the 2 ½ to 3 years that I have been a part of the weapons Dept.  I had taken the test for OS3 and had passed, AO1 R_ had me brought up on disobey lawful order charges soon thereafter.”

Documentation

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

Applicant’s DD Form 149, dtd July 27, 2005 (2) and October 12, 2005
Thirty-one pages from Applicant’s service record
MILPERSMAN 1306-124 (pages 1 and 4)
MSN Hotmail message, dtd March 1, 2004 (7 pages)
Letter from A_ B_ S_, Member of Congress, dtd September 9, 2005 (2)
Letter from F_ W_, Education Officer, Department of Veterans Affairs, dtd July 22, 2005 (3 pages) (Two copies of page one)
Letter from J_ N. S_, Director, County of Los Angeles, Department of Military and Veterans Affairs, dtd September 22, 2005
TEMADD/Travel Order, dtd Mach 12, 2003 (2 pages)
Letter from F_ W_, Education Officer, Department of Veterans Affairs, dtd July 22, 2005
Letter from A_ B. S_, Member of Congress, dtd February 18, 2005
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20010531 - 20010730	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20010731		Date of Discharge:  20040429

Length of Service (years, months, days):

	Active:    02 08 29
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  19

Years Contracted:  4

Education Level:  12				AFQT:  31

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.3 (3)			Behavior:  2.3 (3)		OTA:  2.77

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 (2)/Armed Forces Expeditionary Medal/Navy “E” Ribbon/Navy Rifle Marksmanship Ribbon/Navy Pistol Marksmanship Ribbon.

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  MILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events: 

030508:	Psych note: Presented to medical escorted by watch supervisor for work related concerns.  Member stated he was angry and frustrated due to several recent incidents where he states he was treated unfairly.  States he is confused because he never gets into trouble but lately has been getting yelled at for every little thing.  Was recently given extended hours because he left his locker unlocked, also counseled for being caught sleep in berthing.  Feels like everything he does gets twisted around and feels like they don’t listen to him when he tries to explain.  Feels like he has no outlets, lives onboard ship.  Has friends onboard but doesn’t hang out that often.  Denied any personal issues.  Denied history of suicide/homicide.  Denied family history of suicide.  Denied history of psychiatric treatment.  Appetite ok.  Sleeping decrease, occasional ETOH use, not very often.
	Assessment:  Deferred.
	Plan: 1. Reassurance.  2. Discuss with him.  3.  Pt to follow up with tech.

030513:	Psychologist note: Case discussed (was on leave last week).  Pt brought to medical with occupational problems and anger - which was transient.  Pt was given support/eval by psych tech.  He was offered follow up last week but missed appointment.  Pt frequently seen in medical on social basis by various Corpsmen – Reportedly doing well.  Follow up PRN.

031129:	NJP for violation of UCMJ, Article 92 - Failure to obey other lawful order by not taking out the trash as it was his duty to do so on or about 03Oct27.
	Award:  Forfeiture of $100 per month for 2 months, restriction for 15 days, reduction to E-2.  No indication of appeal in the record.

031129:	Retention Warning:  Advised of deficiency (Violation of the UCMJ Article 92 - Failure to obey Other Lawful Order.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

040124:	NJP for violation of UCMJ, Article 92 - Failure to obey a lawful order by not reporting to the 64 series magazine as it was his duty to do so on or about 03Dec11.
	Award:  Forfeiture of $200 per month for 2 months, restriction for 30 days, reduction to E-1.  No indication of appeal in the record.

040310:	NJP for violation of UCMJ, Article 134 - communicating a threat.
	Specification: In that Operations Specialist Seaman Apprentice D_ E. V_(Applicant), U.S. Navy, USS GEORGE WASHINGTON, on active duty, did, on board USS GEORGE WASHINGTON, located at sea, on or about 28 February 2004, wrongfully communicate to Boatswain’s Mate Third Class J_ M. S_, U.S. Navy, a threat by stating to him, “I will punch you in the face and take you to the deck and I will take my f------ time,” or words to that effect.
	Award:  Forfeiture of $621 per month for 2 months, restriction and extra duty for 30 days.  No indication of appeal in the record.

040322:	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 and misconduct - commission of a serious offense.

040328:	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 and to submit a statement.

040328:	Applicant’s statement.

040407:	Commanding Officer, USS GEORGE WASHINGTON (CVN 73) recommended discharge with a general (under honorable conditions) by reason of misconduct due to a pattern of misconduct as evidenced by his punishment under the Uniform Code of Military Justice; and by reason of misconduct due to a commission of a serious offense as evidenced by his Commanding Officer’s nonjudicial punishment on 29 November 2003, for violation of Uniform Code of Military Justice; Article 92, failure to obey an other lawful order by not taking out the trash as it was his duty to do so on or about 27 October 2003; Commanding Officer’s nonjudicial punishment on 24 January 2004, for violation of Uniform Code of Military Justice; Article 92, failure to obey an other lawful order by not reporting to 64 series magazine as it was his duty to do so on or about 11 December 2003; and Commanding Officer’s nonjudicial punishment on 10 March 2004, for violation of Uniform Code of Military Justice; Article 134, communicating a threat on or about 28 February 2004.  Commanding Officer’s comments:  “OSSR V_(Applicant) has been in the Navy for 2 years and 7 months.  During his career, he has been nothing but an administrative burden to his department, command, and the Navy.  During the twenty-four months that he was assigned to the Weapons Department he received eleven written counseling statements and was the subject of numerous verbal counseling sessions.  The efforts of the Weapons Department to reach OSSR V_(Applicant) are outlined in enclosure (5).  After being transferred to the Operations Department OSSR V_(Applicant) was once again counseled for disobeying an order.  OS1 (SW) M_’s efforts to lead and mentor OSSR V_(Applicant) are contained in enclosure (6).  OSSR V_(Applicant) has been given numerous chances to turn himself around during his naval career and has failed to do so.  OSSR V_(Applicant)’s conduct and attitude shows that he is unable or unwilling to comply with Navy rules and regulations.  His behavior is totally incompatible with the good order and discipline of the naval service.  Therefore, I recommend that OSSR V_(Applicant) be separated from the naval service with a General (Under Honorable Conditions) discharge.

040415:	Commander, Carrier Group EIGHT, directed the Applicant's discharge with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040429 by reason of misconduct due to commission of a serious offense (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).  

The Applicant requests an upgrade of his discharge characterization to honorable. The Applicant states he realized he made mistakes and tried to correct them, but he was working in a hostile and abusive environment, and he had no career guidance from his command. The Applicant bears the burden of presenting substantial and credible evidence in support of his statements.  In the Applicant’s case, the board found that the Applicant did not submit any credible evidence to support the claim of hostility and abuse in the work environment. When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  A 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. One retention warning and three nonjudicial punishment proceedings for violations of UCMJ Article 92: 2 specs (failure to obey a lawful order) and Article 134 (communicating a threat) marred the Applicant’s service. 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 requests an upgrade based on in service impropriety. The Applicant contends that his rights were violated when his department’s Master Chief sat on his disciplinary review board (DRB). The Applicant contends ship regulations prohibited anyone from the chain of command of a sailor before a disciplinary review board, to sit on the DRB.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that there was any impropriety in the DRB process.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  In the Applicant’s case, the board found no impropriety and determined that the discharge was proper.  Relief denied.  

The Applicant requests an upgrade based on in service equity. The Applicant contends he had not been in any major trouble during his 2 ½ to 3 years in the weapons Dept and he was advancing in rank. Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. The NDRB advises the Applicant that certain serious offenses warrant separation from the Navy in order to maintain proper order and discipline. Violations of Articles 92 and 134 are considered serious offenses and typically warrant a punitive discharge if adjudged at a special or general court-martial.
The evidence of record shows (CO’s comments) that the Applicant “was an administrative burden during his twenty-four month assignment to the weapon’s department, received eleven written counseling statements and was the subject of numerous verbal counseling sessions”. 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. The Board found no inequity in the discharge. Relief denied.

The Applicant requests an upgrade based on impropriety. The Applicant contends it was unfair for the commanding officer to reduce him from a frocked E-4 to an E-1. The Board advises the Applicant that under Article 15 of the Manual for Court Martial, a commanding officer may reduce in rate any personnel of his command to the next inferior pay grade.  A service member who is frocked is authorized to wear the insignia/rank of the next paygrade but is not entitled to all the rights and privileges of that paygrade until his promotion effective date. The Applicant was frocked to E-4 when he went to NJP on 
20031129 and was reduced in rank from his actual paygrade and rank of E-3 to E-2. The Applicant was subsequently reduced in rank again on 20040124 to E-1. The Board found no impropriety or inequity in the Applicant’s issue. Relief denied.

The Applicant seeks an upgrade in order to “re- enter the armed forces”. Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

For the edification of the Applicant, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service. The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct, which precipitated the discharge.  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), re-issued October 2002, effective 22 Aug 02 until 25 April 2005, Article 1910-142 [formerly 3630605], SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

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 (failure to obey a lawful order) and Article 134 (communicating a threat).

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