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NAVY | DRB | 2001_Navy | ND01-00744
Original file (ND01-00744.rtf) Auto-classification: Denied



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

ex-FR, USN
Docket No. ND01-00744

Applicant’s Request
The application for discharge review, received 010508, requested that the characterization of service on the discharge be changed to Honorable. The applicant requested a documentary record discharge review. The applicant did not list any representative on the DD Form 293. Subsequent to the application, the applicant obtained representation by the Veteran's of Foreign Wars.

Decision

A documentary discharge review was conducted in Washington, D.C. on 011127. 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: GENERAL (UNDER HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. In boot camp my petty officer pulls a pistol out on me. He told me that he could kill me and get away with it. A lot of my shipmates testified against him in captain mast. Some did in fear of retaliation. He got his rank taken from him but he didn't get discharged for his cruel and unusual punishment to us. He also was opening my letters and reading them. Opening other peoples mail is still a federal offense. When I was on the USS Indolence I was singled out because I witnessed petty officer W_ urinating in the birthing after coming in intoxicated. I didn't turn him in to the Master at arms, 3 rd class petty officer M_ turned him in. Petty officer M_ told the Master at arms to bring me into "as a witness. Rumors were spread that I had told on him so he started to single me out. He did things like change the watch log on short notice. He wouldn't let me be properly trained so I could make 3 rd class petty officer. He admitted to not calling the master at arms when I was on watch and had to muster for restriction, I got the dirt jobs from then on out. I had no problems until Petty officer W_ got there. I had one NJP before he got there because of culture shock I was told. The real reason was I got hassled by c-Fay. My CD's and CD player got stolen in the park and I was upset about it. So I was late getting back to the ship. At that time I was supposed to be in before Midnight. I looking for them and got stopped by c-Fay they say that they got a call about someone disturbing the peace and asked me did I know anything about it? I told them no. Then they asked me to show them I.D. I asked them for what. I didn't do anything wrong. He then asked me to get into the car. I told them no, because I know I'll end up going to mast. It was their fault that I was late getting back to the ship. If they hadn't detained me I would've made it. He then called for back up. They jumped me and slammed my head on the street while trying to handcuff me. They put me in the car afterwards. Then they took me to the hospital after seeing that my head was bleeding. They left me in the car so that they could check me in. Out of anger for being harassed I kicked the glass out of the car, climbed out and ran. They caught me and took me back to get treatment. After than I began to change for the better. But originally the military had told me that I was going to the west coast, which is California for my duty station. I was very surprised when they gave me orders to Japan. Because I had to leave my fiancé' in the states so we eventually drew apart. I guess being away from her and my stepson sort of speaks, gave me an edge. It constantly ate at me. I felt like I let her down. I did not want to be overseas. After I adapted to being without my new small family I focused much harder. I push myself way past my limits. I worked out twice a day. I exercised with seals. I wanted to change my job to become a seal. I as in top shape. I did everything I had to do to get prepared "sand dog" (San Diego) and I kept up with my duties in the lab. The commanding officers' letter stated that I am "capable" and an "asset" to the Independence. The oldest aircraft carrier in the fleet at that time. I boxed and trained others. I was challenged constantly. Which was all good because it kept me razor edged sharp and relieved stress. Petty officer W_ comes to the ship and good things go bad again. I knew more than he did about the lab and was the longer. He was being trained out of a manual. I had hands on training. He was different then. Because he wasn't in charge. But when the change of our petty officers and chiefs happened he got a position of power. He was awful as a leading petty officer. After my captain mast when he came I wrote a letter to be transferred out of the lab but my request was denied. I wrote the letter because I knew that petty officer W_ had ill feelings towards me. So I did try to save my career. I've gotten little nasty racist notes above the fuel tanks on the bulkhead when it was my turn to check the fuel levels and get samples. During my court martial when the cross examined the people that witness my final incident, they found out that they all were persuaded by W_ to testify against me. He used his power to intimidate the others into setting me up. They all got caught in their web of lies and I still get discharged. I couldn't take any more favoritism and mistreatment so I snapped. Currently I am unemployed due to a back injury. Before my injury I couldn't keep a job, I don't sleep well, I have nightmares, I'm depressed, I have trouble with personal relationships, I drink more, at times I have suicidal thoughts, My family thinks I need help. I haven't had any counseling or evaluation. But I feel a great deal of injustice has been committed to me so that is whey I think my discharge should be upgraded to honorable. I feel like a p.o.w. and I haven't been to war as you know it. I fought though. I was in great danger every time I went out to liberty. I had to watch shipmates and the people in other countries. Mentally I never rested. Now I have to question am I still mentally healthy? I feel tine but others think differently. If it is something wrong with me it wasn't my fault. I had things like I had my beep spiked at the club on base. In boot camp while I was SIQ (sick in quarters) the RPO came over to my rack and told me "(Applicant) your not sick get up out of your rack". I was in my rack because I had my teeth pulled and I was resting until the drugs wore off. I got into it with him. I swung at him and the others grab me to break us up. In turn I hit the yeoman. I got extra duty for it but that was it. I'm hard pressed due to the military. I'm only comfortable when I'm alone. Even though the odds were against I still shined and had no fear. I did my job well, and only the bad things were seen. I saved a shipmate who was near death due to alcohol poisoning. I and another shipmate carried him back to the ship. From the type of discharge they gave me you couldn't tell that I was a good sailor. Chief S_ can vouch for me, S_ can vouch for me, S_ can vouch for me. The discharge of pattern of misconduct is way to harsh. I had to fight to stay in as long as I did. Every one didn't like me but alot of them did. They could tell you I was alot different from what I described in my court martial. Please look over the evidence closely. I was done wrong. Thanks for your time. Best Regards,

P.S. I don't deserve the treatment from the government then and I don't deserve it now. I chose to fight my country. I don't want to regret my decision.

2. Request applicant's entire record of service is reviewed for fairness and equity of his discharge.



 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Copy of Financial Management Service dated April 13, 2001
Statement from applicant
Letter to applicant from Department of Veterans Affairs dated May 19, 1999
Copy of Central Texas College grade report
Copy of itemized bill from Stormont-Vail Health Care dated July 14, 2000
Copy of opening statement dated December 20, 1998
Copy of Emergency Physicians of Topeka statement dated July 24, 2000
Copy of statement of medical care cost recovery account activity dated June 18, 1999
Copy of prescription receipt from Dillon's Pharmacy
Twenty pages from applicant's service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     960214 - 960225  COG

 Period of Service Under Review :
Date of Enlistment: 960226               Date of Discharge: 971218

 Length of Service (years, months, days):

         Active: 01 09 23
         Inactive: None

 Age at Entry: 22                          Years Contracted: 4

 Education Level: 12                        AFQT: 44

 Highest Rate: XX3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF                  Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR

 Days of Unauthorized Absence: 3

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

GENERAL (UNDER HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

960919:  NJP for violation of UCMJ, Article 86 (4 specs): Unauthorized absence on 1930, 8Aug96, 0930, 8Aug96, 1930, 10Aug86, 1930, 13Aug96, violation of UCMJ, Article 95: Resist being apprehended on 24Aug96, violation of UCMJ, Article 108: Damage property of the United States on 24Aug96, violation of UCMJ, Article 134: Drunk and disorderly on 24Aug96.
         Award: Forfeiture of $437 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
960930:  NJP for violation of UCMJ, Article 86: Unauthorized absence on 0645, 21Sep96 to 0645, 24Sep96 (3 days).
         Award: Bread and water for 3 days. No indication of appeal in the record.
961129:  Chief of Naval Personal notifies USS INDEPENDENCE (CV-62) of applicant's arrest record to be reviewed with applicant and process for fraudulent enlistment.

970426:  Retention Warning: Advised of deficiency (Unauthorized absence, resisting apprehension, willfully damaging government property, drunk and disorderly conduct and missing restricted men's musters.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

970525:  Commanding officer request waiver of mandatory administrative separation processing by reason of fraudulent enlistment. Applicant failed to report full arrest record. Complete details found on microfiche record.

970806:  NJP for violation of UCMJ, Article 86: Unauthorized absence on 0500, 17Jul97.
         Award: Forfeiture of $300 per month for 2 months, restriction and extra duty for 45 days, reduction to FR. No indication of appeal in the record.
970806:  Retention Warning: Advised of deficiency (Failure to go at the time prescribed to your appointed place of duty on 17Jul97.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
970822:  NJP for violation of UCMJ, Article 86: Failed to go to his appointed place of duty, to wit: restricted men's musters on 10Aug97, 12Aug97, and 18Aug97.
         Award: Bread and water for 3 days. No indication of appeal in the record.
971002:  Applicant released from confinement.

 971111:  NJP for violation of UCMJ, Article 86: Fail to go to appointed place of duty, violation of UCMJ, Article 134: Communicate a threat.
         Award: Forfeiture of $400 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
971111:  Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to Commission of a serious offense as evidenced by your Commanding Officer's nonjudicial punishment of 19 September 1996 and 11 November 1997, and by reason of misconduct due to a Pattern of misconduct as evidenced by your Commanding Officer's nonjudicial punishment of 11 November 1997; 22 August 1997; 6 August 1997; 30 September 1996; and 19 September 1996.
971111:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
971112:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to a Pattern of misconduct, that the misconduct warranted separation, and recommended discharge General (under Honorable conditions).

971203:  Commanding officer directed the applicant’s discharge as General (under Honorable conditions) by reason of misconduct due to Commission of a serious offense and misconduct due to a Pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 971218 General (under 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).

Issue 1 and 2. The applicant requests that the Board look over the evidence closely and that his entire service record be reviewed for fairness and equity of his discharge. The Board reviewed the applicant’s service records and all additional documents provided and determined there were no errors in procedure and no inequity in the assugnment of the discharge characterization. There is no evidence in the applicant’s record nor did he provide any documentation to show that he was treated unfairly. The applicant’s record shows a list of violations of the UCMJ, to include unauthorized absence, resisting apprehension, damaging government property, fraudulent enlistment, drunk and disorderly and failure to go to an appointed place of duty. He was given two opportunities to correct his behavior, as evidenced by the two documented retention warnings. The discharge was proper and equitable. Relief denied.

 Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C, Change 14, effective 03 Oct 96 until 11 Dec 97), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – A 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 view DoD Directive 1332.28 and other Decisional Documents by going online at “ afls10.jag.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:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023      


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