Author: CAP
Last saved by: joseph.curtis
Company: NCPB

Docket No. ND06-00563

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

FOR OFFICIAL USE ONLY

ex-MMFR, USN
Docket No. ND06-00563

Applicant’s Request

The application for discharge review was received on 20060315.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions).  The Applicant requests a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area.  The Applicant did not designate a representative on the DD Form 293.

Decision

A personal appearance discharge review was conducted in Washington, D.C. Metropolitan area on 20070216.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, impropriety and inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the discharge shall change to:  GENERAL (UNDER HONORABLE CONDITIONS)/ PATTERN OF MISCONDUCT, authority:  MILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

As submitted

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

“The discharge should be upgraded to General under Honorable Conditions because the discharge came about from a single event that snowballed into a series of events that led to the SCM.

As indicated in the original Summary of service from the review on 960528 I was stationed on board the USS George Washington on 921120.  I started service on 910123 as a member of a Hall of Fame Company C064 at Naval Training Center Orlando, FL. 3 years elapsed without incident before the chain of events started.  The initial event that started the chain was on 940303.  After the initial event I was on restriction for 30 days.  It was not until 940614 that charges were brought for missing muster during the restriction for the initial event.  It should be noted that there were 180 musters during the original restriction and I was late to 3.  This NJP was directly related to the initial event.  I was placed back on to restriction and then missed 2 more musters during the second restriction.  I was placed into the brig on bread and water and then placed back onto restriction after being released from the brig.  Being certain that I would never get out of this cycle of repeated restriction I then jumped off the ship.  This was a direct result of the initial event.  All events were connected.

Therefore I believe that because I had 3 years of service with no issues and above average reviews (including the attached 4.0 final evaluation) that the discharge was unjust.

In the 10 plus years since my time in the Navy I have proven that the sequence of events were even more of an anomaly brought by a flawed judicial system on board the USS George Washington.  I have been working every moment since leaving the Navy at whatever job and company I have chosen.  I have quickly moved up through the civilian world and am now a manager with a contractor to the Department of Homeland Security working on the Immigration and Customs Service contract.  I have held a security clearance and steadily advanced my career with no legal or employment issues.  I have worked for a bank and been bonded with no incidents.  I volunteered with the Young Bankers Association and taught middle school children about finances.  I have been named employee of the quarter.  I have achieved multiple professional certifications.  I am married and now have 2 children.  I own a home in the Washington, DC area, and am a member of the Board of Trustees for my neighborhood homeowner’s association, and as the Treasurer I maintain an annual budget of over $600,000.  I hope it is apparent that the label of Other than Honorable does not apply to my life.

In conclusion, as a manager in the civilian world, I understand and accept the initial incident was a serious incident.  If someone were to have that sort of incident under my management he would probably be fired.  However, an Other than Honorable discharge is more in line with an employee who was caught committing a crime, not failing in duty.  I believe an Other than Honorable discharge carries punishments that have implications far beyond that which are just in this case.”

Documentation

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

Applicant’s résumé (2 pages)
Applicant’s Employee of the Quarter certificate from B_ and H_ Bank and Trust Company, undated
Applicant’s Outstanding Performance certificate from E_ D_, Chairperson, Y_ B_ Section, dtd June 17, 1998
Applicant’s certificate Celebrating Excellence from E_ D_, Chairperson, Y_ B_ Section, dtd June 17, 1998
Applicant’s performance appraisal for period October 1, 2004 to October 1, 2005 (2 pages)
Applicant’s Certificate of Completion of BTC158H - Definity Basic Administrator Training, from Avaya University, dtd May 4, 2001
Applicant’s Certificate as a Microsoft Certified Professional from B_ G_, undtd
Cisco Career Certification and Training examination score report, dtd April 19, 2002
Applicant’s copy of previous NDRB decisional document
Two pages from Applicant’s service record
Prisoner’s Release Order, Naval Station, Norfolk, Virginia, dated October 11, 1994

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19901025 - 19910122	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19910123		Date of Discharge:  19941006

Length of Service (years, months, days):

	Active:    03  08  14  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  12 days
	Confinement:		  22 days

Age at Entry:  18

Years Contracted:  4

Education Level:  12				AFQT:  90

Highest Rate:  MM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.8 (4)		Behavior:  3.7 (5)		OTA:  3.72

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):

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority:  MILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events: 

940303:	NJP for violation of UCMJ, Article 92: Dereliction of duties on 940205, by willfully failing to log proper temperature readings while making tours as shaft alley patrol watch and lying on the deck.
Violation of UCMJ, Article 134: Offenses by a sentinel by wrongfully lying down on his post.
	Award:  Forfeiture of $100.00 per month for 1 month, restriction and extra duty for 30 days, reduction to E-3.  Reduction suspended for 6 months.  No indication of appeal in the record.

940303:	Retention Warning:  Advised of deficiency (VUCMJ, Art 92 -- Dereliction of duties and Art. 134 -- offenses by a sentinel).  Notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

940614:	Reduction in pay grade awarded and suspended at NJP on 940303 vacated due to continued misconduct.

940614:	NJP for violation of UCMJ, Article 86 (3 specs): Failure to go to appointed place of duty - missing restricted men’s muster at 0630, 940322; 1600, 940325; and 1800, 940327.
Violation of UCMJ, Article 134: Disorderly conduct on 940404.
	Award:  Restriction and extra duty for 45 days.  No indication of appeal in the record.

940622:	NJP for violation of UCMJ, Article 86 (2 specs):  Failed to go to his appointed place of duty, to wit: restricted men’s muster.
Violation of UCMJ, Article 92: Failure to obey a lawful order on 940618.
	Award:  Forfeiture of $50.00 per month for 1 month, bread and water for 3 days.  No indication of appeal in the record.

940625:	Applicant released from confinement on bread and water.  Placed on restriction.

940625:	Applicant jumps overboard from Hangar Bay during restriction muster.
	[Extracted from Summary Court-Martial specification and Medical entry, dtd this date.]

940625:	Medical Entry:  Clinical Record, USS GEORGE WASHINGTON (CVN 73), CDR F. V. E_, MC, USN:  22 y.o. MMFN w male (Applicant) jumped overboard from Hangar Bay 1 after mustering the 2^nd time for routine restriction muster.  Patient will not talk about why he jumped.  He jumped feet first.  No loss of consciousness – admitted of few swallows of salt water but no aspiration & the water was warm.  He stayed for about 5 mins – before he was rescued by helicopter.  He was seen in main medical with a T – 94.5^0F in NO distress and was re-warmed to 97^0F in 10 mins.  Patient is going to be admitted for management.

940625:	Medical evaluation by LCDR C. F. B_, Jr., MC, USN:
	Assessment:  (Applicant) does not reveal evidence of psychosis or disabling neurosis and does not possess suicidal intentions.  He is not homicidal.  There is sufficient evidence to warrant the behavioral term, character disorder.  If counseling, supervisory guidance and appropriate disciplinary actions do not cause a change in attitude and behavior, the individual may be considered for administrative separation under the appropriate MILPERSMAN article.  Subject member is not physiological or psychologically dependent on alcohol.  Subject member is not recommended for further Naval Service.

940625:	Summary Court-Martial.
	Charge:  violation of the UCMJ, Article 134:
	Specification: Jumping from a vessel on 940625.
	Finding: to Charge and the specification thereunder, guilty.
	Sentence: Forfeiture of $554.00, confinement for 24 days, confinement on bread and water for 3 days, reduction to E-1.
	CA action 940625:  Sentence approved and ordered executed.
	
940625:	Applicant notified of intended recommendation for discharge by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct as evidenced by service record, with the least favorable characterization of service as other than honorable.

940625:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.  Applicant did not object to separation.

940625*:	Applicant to confinement.
[*Service record indicates to confinement on 940625; however, medical records indicate that Applicant remained in ward under observation overnight from 940625 – 940626 and discharged from the medical ward on 940626 with disposition diagnoses:  1.  Mild hypothermia resolved.  2.  Probable Personality Disorder (Borderline).  Preponderance of evidence indicates Applicant transferred to Norfolk TPU NLT 940626.]

940627:	Commanding Officer, USS GEORGE WASHINGTON (CVN 73), recommended to BUPERS, via naval message, that the Applicant be discharged by reason of misconduct due to commission of a serious offense, and misconduct due to a pattern of misconduct with a characterization of service as under other than honorable conditions, as evidenced by his service record.  Commanding Officer’s comments:  “MMFR L_ (Applicant) is recommended for immediate separation by reasons of misconduct due to commission of a serious offense; and misconduct due to a pattern of misconduct, as evidenced by his service record.  His discharge should be characterized as under other than honorable conditions.  MMFR L_ has no potential for further service in the United States Navy.  Due to the circumstances surrounding the offense of jumping from a vessel into the sea, for which he was sentenced at Summary Courts-Martial.  I strongly recommend this case be considered in the most expeditious manner.”

940712:	BUPERS directed the Applicant's discharge by reason of misconduct due to a pattern of misconduct with a characterization of service as under other than honorable conditions.

940717:	Applicant released from confinement.

940923:	Applicant to unauthorized absence at 1140.

941005:	Applicant from unauthorized absence at 0800 (12 days/surrendered.)  To confinement.

941006:	DD 214:  Applicant discharged this date.  Block 21, Signature of Member Being Separated, indicated “Discharged in abstentia;” however, Block 29, Dates of Time Lost During this Period, indicated “23SEP94-05OCT94.”

960528:	NDRB documentary record review Docket Number ND96-00439 conducted.  Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19941006 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 impropriety and inequity in the discharge (C and D).  

The Board did not concur with the Applicant’s contention that his discharge was essentially the result of one incident rather than a pattern of misconduct.  The Board found that the technical requirements for a pattern of misconduct were met.  Although not raised as an issue by the Applicant, the Board did find impropriety in carrying out Applicant’s discharge.  The separation authority was promulgated on 940712.  The record does not indicate why the Applicant was not discharged in a timely manner thereafter.  While the Applicant’s confinement upon return from UA on 19941005 was not improper, his continued confinement after 19941006, when he was discharged, was improper.  While not justified, the Board found that the Applicant’s unauthorized absence (UA) from 19940923 – 19941005 was significantly mitigated.  Furthermore, the Board questioned the equity of Applicant’s Summary Court-Martial occurring the same date of offense for which he was tried.  The Board found that, in light of all the facts and circumstances of the case, including the Applicant’s creditable post-service conduct, an upgrade of his characterization of service to general (under honorable conditions) was appropriate.  The Board determined that an upgrade to honorable, in light of the Applicant’s misconduct, was not appropriate.

The following is provided for the edification of the Applicant.  The Applicant has exhausted his opportunities for review by the NDRB.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of Naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C, Change 9, effective 
22 Jul 94 until 02 Oct 96), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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

PART IV - INFORMATION FOR THE APPLICANT

If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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