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NAVY | DRB | 1999_Navy | ND99-00957
Original file (ND99-00957.rtf) Auto-classification: Denied


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

ex-DPSN, USN
Docket No. ND99-00957

Applicant’s Request
The application for discharge review, received 990709, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a documentary record discharge review. The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000417. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/ PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

The NDRB did note an administrative error on the original DD Form 214. Block 12a, Date Entered AD This Period should read: “94 DEC 22” vice “94 SEP 12”, Block 12c, Net Active Service This Period “03 05 14” vice “03 06 27”, Block 25, Separation Authority should read: “NAVMILPERSMAN, Article 1910-140” vice “MILPERSMAN 3630600/BUPERS 051829Z JUN98”. The original DD Form 214 should be corrected or reissued as appropriate.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. I respectfully request that your office recommend upgrading my military service discharge from General Discharge Under Other than Honorable Conditions to General Discharge Under Honorable Conditions.

2. I recognize the time and effort required for this review. Accordingly, I offer this petition only by virtue of the telling record contained herein which sincerely pleads the worthiness of immediate redress. As such, I respectfully request that the condition of my discharge be upgraded to a General Under Honorable Conditions. I believe my petition should be granted for the following reasons: (a) overall high quality of military service rendered, (b) confirmed record of impartiality of command structure, (c) undue harshness of discharge characterization, and (d) ineffective assistance of counsel.

3. Overall High Quality of Military Service Rendered .
Successful completion of Army and Navy boot camps
Successful completion of military tours of duty in the Army and Army
National Guard
Successful completion of Navy tour of duty until Captains Mast Successful promotions to the grade of E-4
Currently sitting for the E-5 Navy promotion exam
Completed ESWS qualification in 3 months as an E-4
Personnel problems with family coincided with the U.S. Navy's "Year of the Family" Campaign.

4. Confirmed Record of Impartiality of Superior Officer in Charge . After returning to San Diego in October of 1997 from a successful WESTPAC assignment within the S-7 shop aboard the U.S.S. Kitty Hawk, ESWS classification, promotion to E-4, and Two Captain level LOA'S, I was sent to temporary assigned duty (TAD) to the aircraft carrier's overhaul division from the S-7 division. It was at this time I felt ENS B_, the Division Officer of the S-7 division was unhappy with my performance or my personality clashed with his evaluation of what it should be as his subordinate.
a. As further evidence of impartiality, I was an E-4, which means that ENS B_ should not have considered me for this duty until all other junior personnel possibilities were exhausted. ENS B_ directed DPC D_ to initiate the TAD orders. DPC D_ stated to me that this TAD assignment would only be for one month, which was the normal rotation time. It turned out to be three months.
b. I was assigned to SKCS J_ within the overall section that further assigned me to SKI W_-M_. When SKCS J_ received the initial report from SKI W_-M_ regarding the below three charges his first impression was to assign me to extra duty. That is not what occurred because ENS B_ found out about the charges and directed SKCS J_ to provide the official paper work regarding these charges. SKCS J_ complied with that request and I expected to follow the normal procedures regarding these matters.

c. Conflict of Interest Confirmed by Abrogation of Due Process Protections . That was not the case because ENS B_ was assigned as the preliminary Investigating Officer (POI) which was a conflict of interest because he was my division officer in my parent division and could not remain impartial. The assignment of the POI is normally assigned to an officer outside the assigned work section. I was not offered the normal LCPO board and was sent directly to the Executive Officers Inquiry (XOI). From XOI I was sent to my first Captains Mast of my 7-year career on 19 Nov 97.

d. Charges:

1) Going from appointed place of duty . SKI W_-M_ told everyone about a meeting after work except for me. I was on watch and when we get off watch our day is done. I left without knowing about the meeting.

2) Disrespect to a superior petty officer . The next morning I inquired about missing the meeting, SKI W_-M_ became vocally distraught in front of the mustered troops. To defuse her obstreperousness in front of the enlisted crew I calmly asked if we could step outside and discuss the matter with some discretion. She denied my request and ordered me out of the office. Furthermore, upon closing the water tight hatch she accused me of slamming it and 4 6 mumbling something under my breath". I had three witnesses ready and able to testify to the contrary. They were in muster at the time the allegations occurred, and could easily rebut the factual basis underlying the charges made by the SKI. However, SKCS J_ refused to allow the witnesses to appear before the captain's mast.

3) Failure to obey a lawful order. SKI Wilson-Monroe had said she had told me to come back in the office as I was shutting the door. In contrast, the above mentioned three witnesses could have easily laid that allegation to rest. However, they were precluded from captain's mast.

e. I did not receive an LCPO board, nor did I have a chance at XOI to speak. At mast they also revoked my ESWS pin. This consisted of an extreme measure meant to demoralize me not to attempt any redress or rectification. I have never heard of someone getting a warfare qualification revoked outside the program. The legal officer had to even look it up to make sure that he could do it. Piled on top of this were the following punishments for this first offense; 15 days restriction, 15 days extra duty, reduction of one pay grade, forfeiture of my a warfare qualification, and forfeiture of one half pay for two months. Only the forfeiture of pay was suspended.

f. Violation of Request Mast Procedure. Shortly after Captain's Mast requested Captains mast again based on SKCS J_'s statement to me that he was going to "run" me out of the Navy. My request was denied at the Division Officer level. The Division Officer did not send the request any further- a direct violation of U.S. Navy traditions and regulations. I brought this fact to his attention. In response, he threatened to make my life "a living hell for the remaining time I was TAD" if I pursued this request. Not surprisingly then, I dropped the request. No other issues arose during this TAD period.

g. Support by Commanding Officer in contrast to actions by Immediate Superior . One week after my first Captain's Mast request I made an additional request to see the Captain to request he reconsider the previous assigned punishment. Specifically, I did not believe he possessed all the facts before he decided to the aforementioned punishments of reduction of one pay grade, and forfeiture of my warfare qualification. The Captain shared my position and stated that if I did my job well and did not receive an additional disciplinary action within the next 6 months that he would give me back the pay grade and my warfare qualification.

h. Actions subsequent to Request Mast. For the next 5 months I did exactly what the Captain directed. I did so in spite of the increased difficulty caused by my reassignment from the overall section - to the S7 - to the radio section - to the Fire watch section. (why all the reassignments, was he a "problem child" or were they purposefully making it difficult for him). Also during that time we were deployed from San Diego CA. to Bremerton, WA. As stated, when deployed to Bremerton Washington I was sent TAD to Firewatch Division for a second time. I recently returned from TAD to overhaul. No other person was considered for this new billet.

1) Assignment caused prolonged family separation at critical time . This separated me from my wife. My wife possesses a history of emotional problems. With the undue stresses caused by my reporting seniors and our forced separation by my deployment these family problems were about to come to a head.

2) Family problems were Life Threatening . During the 6th month of my probationary period, my new parent division officer, ENS R_, received a telephone call from my wife containing a suicide threat. The Command did not support my family as traditionally expected of senior U.S. Navy personnel. In fact, the Command went so far as to claim this was a ploy to get me away from the ship. Significant records exist evidencing my wife attempted suicide before. They denied my request for leave. Bearing considerable concern for my family I attempted to persuade the Command to send me at no cost on a weekend NALO flight. I asked because the Command, as a matter of routine policy, had a history of sending other sailors home on these NALO flights. However, for unspecified reasons, they denied this request in my case. I attempted utilizing the chain of command. However, I was stopped cold at the department head level. The department head threatened retaliation if I made another attempt to go higher to the XO. I then requested to see the Command Master Chief to explain my predicament. The Command Master Chief directed that I take leave starting on Thursday with Friday already scheduled as a day off for the section and be back on Sunday I would not miss any days of work then I could execute my leave request. Shortly after that a report appeared that charged me with wrongfully using provoking words. Procedures do not allow a Sailor to go on leave if there is a report pending on an individual so my leave was canceled. I went to the Command Master Chief to request his assistance with this issue but he stated his hands were tied due to procedures. I stated I would have to go even though I was not authorized because I was concerned for my wife.

i. I was in an unauthorized absence status from 12 March 1998 until 15 April 1998 and during that time the ship relocated from to Bremerton, WA back to San Diego CA. So I was also in a missing ships movement status. When the ship arrived back in San Diego I turned myself back into the ship's custody where I was formally charged with one count of all three article violations of 86, 87, and 117.

j. Captain's Mast unfairly affected due to theft of my personal belongings . When I appeared at my second Captain's Mast I was in the wrong uniform because, although the division officer inventoried my personnel belongings as is normal procedures in an unauthorized absence status, my possessions came up missing to include my dress uniforms which I was to wear at Mast. During the Captain's Mast it was apparent that the Captain was frustrated at the fact that I was in the incorrect uniform but this condition was not my fault but it was clear that it was detrimental to my non-Judicial Punishment proceedings.

k. Ineffective Assistance of Counsel . At the conclusion of the second Commanding Officer's punishment proceedings I was told I would be discharged from the Navy with a General Discharge under Honorable Conditions. I was told this by ENS R_, ENS B_, BMC R_, and DPC D_. However, after the fact, when I reviewed my discharge papers, I discovered that I had in fact received an other than honorable discharge without the benefit of the findings of an administrative board authorized. I signed all papers forfeiting an administrative discharge board because I was told an administrative discharge board would surely result in a worse discharge - a factual and legal impossibility. I do not believe I received appropriate advice on the quality and nature of my discharge. Prior circumstances indicate my command encouraged this injustice to further an ulterior agenda. As such I must state that my acceptance of this discharge and corresponding waiver of rights arose only because of undue command influence and ineffective assistance of counsel . This was a great disappointment to me and caused serious complications in my effort to seek civilian employment and support my family.

5. Harshness of Punishment Exceeded all Standards of Fairness . I know that my stressful family situation initiated some difficult situations in my last year of military service. However, I believe the command responded with a vehemence totally incompatible with what the limited offenses merited. Accordingly, I request this impartial review of my case. I believe it will determine that other personnel and events contributed unfairly and unevenly to the present, unfair discharge classification.

a. Please note I am not asking for complete exoneration. Instead, I respectfully request I receive a General Discharge under Honorable conditions. Equally important I agreed to leave the service under the pretext presented to me that I would receive this discharge categorization. If I had known I would not receive a General Under Honorable Conditions I would have specifically invoked my right to an administrative discharge board. Even more important, the underlying circumstances of my discharge only support a discharge categorization of General under Honorable Conditions, and no more. This is the type of discharge I believe I agreed to and in so doing, provided the U.S. Navy the benefit of administrative expediency in the process.

Many sailors receive honorable discharges after far less credible service than I provided to our Country. Furthermore, I would have served much more than that and if it were not for the personal agenda of ENS B_ to push me out of the Navy I would still be on duty serving our country faithfully.

6. Conclusion . I want to continue to contribute to the United States as a valued member of the civilian work force. I believe the Department of Defense invested training me for seven (7) years with military experience specifically for this purpose. However, I need your assistance with this effort. Very Respectfully
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Copy of DD Form 149
Forty-four pages from applicant's service record.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USAR            9102 - 9108      HON
                  NG                        9108 - 941221    HON

Period of Service Under Review :
Date of Enlistment: 941222               Date of Discharge: 980605

 Length of Service (years, months, days):

         Active: 03 05 14
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 9                         AFQT: 70

 Highest Rate: DP3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF                           Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR, GCM, AFEM

 Days of Unauthorized Absence: 57

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).







 Chronological Listing of Significant Service Events :

960730:  Retention Warning: Advised of deficiency (Disrespect toward a senior petty officer while in a liberty status on 18Jun96. Failed to obey a lawful order issued by the Mess Deck Master-at-Arms when directed to leave the area.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

971119:  NJP for violation of UCMJ, Article 86: Go from appointed place of duty on 971111, violation of UCMJ Article 91: Disrespect by deportment to a superior PO on 971103, violation of UCMJ Article 92: Fail to obey a lawful order on 970924, violation of UCMJ Article 107: False official statement on 970924.
         Award: Forfeiture of $575 per month for 2 months, restriction and extra duty for 15 days, reduction to DPSN. Forfeiture suspended for 6 months. No indication of appeal in the record.
971118:  Retention Warning: Advised of deficiency (Go from your appointed place of duty on 2230, 11Nov97 until 0635, 12Nov97, disrespectful by deportment toward a superior petty officer on 3Nov97, disobey a lawful order from a superior petty officer on 24Sep97, make a false official statement on 24Sep97.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

980526:  NJP for violation of UCMJ, Article 86: Unauthorized absence on 0645, 980312 to 0045, 980509 (57 days/apprehended), violation of UCMJ Article 87: Missed ship's movement on 15Apr98, violation of UCMJ Article 117: Wrongfully use provoking words on 980522.
         Award: Forfeiture of $591 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
980528:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct as evidenced by your Commanding Officer's nonjudicial punishments of 26 May 1998 and 19 November 1997 for violation of the UCMJ, Articles 86, 87, 91, 92, and 117.
980528:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
980602:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct.

980605:  BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. [Date extracted from DD Form 214.]

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 980605 under other than honorable conditions for misconduct due to a pattern of misconduct (A). The Board presumed regularity in the conduct of governmental affairs (B). 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 NDRD found four issues in the applicant’s letter.

The NDRB found the applicant’s significant misconduct outweighed the positive aspects of his service. Specifically violations of the Uniform Code of Military Justice Article 86; Unauthorized absence for 57 days terminated with apprehension and Article 87 Missing Ship’s Movement constitute commission of serious offenses and if tried at court martial
could result in a punitive discharge. Relief is not warranted.

The applicant’s second issue states he was victim of “confirmed impartiality of superior officer in charge.” The NDRB found no evidence in the record that the applicant was mistreated or treated unfairly. Additionally, the applicant did not provide any documentary evidence to support this claim. Relief is not warranted.

The applicant’s third issue claims the “harshness of punishment exceeded all standards of fairness.” The NDRB found no evidence to support this issue. The NDRB found that the applicant signed the statement of awareness in the notification procedures stating that the least favorable characterization of discharge would be other than honorable. Relief not warranted.

The following is provided for the applicant’s edification. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. The applicant must be aware that 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 the civilian life subsequent to leaving the service. Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, 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, may be considered by the NDRB. The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at personal appearance hearing is highly recommended.



Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 1997 until Present, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

B. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 obtain a copy of DoD Directive 1332.28 by writing to:
                  DA Military Review Boards Agency
                  Management Information and Support Directorate
                  Armed Forces Reading Room
                  Washington, D.C. 20310-1809

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:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  Washington Navy Yard
                  720 Kennon St SE Rm 309
                  Washington, D.C. 20374-5023     


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