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NAVY | DRB | 2002_Navy | ND02-00256
Original file (ND02-00256.rtf) Auto-classification: Denied


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

ex-STGSR, USN
Docket No. ND02-00256

Applicant’s Request
The application for discharge review, received 020114, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions. The applicant requested a personal appearance hearing before the board in the Washington National Capital Region. The applicant listed a civilian counsel as the representative on the DD Form 293. In the acknowledgement letter to the applicant, the applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020731. 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).



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

 1. During Boot Camp I was not afforded the opportunity to appeal the decision to deny me a TS/SCI clearance by the investigator. She informed me that she did not like the way the psychological exam was worded, and did not have time to bother with it and that her decision was final. Because of this I was sent to reclassification and placed into a rating not of my choosing. In speaking with the XO, CMC, and the CC at FLEASWTRACEN there was a unanimous conclusion that I had a solid case for breach of contract. This is the first issue I would like addressed.

2. I would like to preface my second issue with facts that I have since learned about after my discharge. That is that the CO, legal and the command in general at FLEASWTRACEN San Diego is under investigation for punishments that greatly outweigh the infractions. Specifically, too many OTH discharges and GENDETs of students. Although I was charged with underage drinking, I was neither given a breathalizer nor was blood taken. Students with similar or greater charges were given leniency or had charges dropped if they gave names of students they believed to be in violation of the UCMJ.

3. STGC L_ publicly stated his personal dislike of me and because of this denied me training that was in my Pipeline contract and offered my billet to other, lesser qualified students. Again, this was done publicly, in front of the entire class.

In conclusion, although STG was not the school/Rating I enlisted for, I still tried to make the best of my situation. I believe that had these chain of events not been set in motion, I would have excelled in my service. Given the opportunity, I would again enlist for CTM bringing credit to the Service, my family and my Country. I thank you for your time and consideration. Very Respectfully,
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     990925 - 000807  COG

 Period of Service Under Review :
Date of Enlistment: 000808               Date of Discharge: 010824

 Length of Service (years, months, days):

         Active: 01 00 17
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 11                        AFQT: 79

 Highest Rate: STGSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF                           Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: None

 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 :

990925   Applicant signed enlistment guarantee for Advanced Electronic Field/Cryptologic Technician (Maintenance), (AEF/CTM), with $6,000.00 enlistment bonus option.

001002   Applicant signed NAVPERS 1070/613 acknowledging he was no longer eligible for AEC/CTM guarantee due to a Naval Security Group disqualification for Psychological Reasons and reassignment to AEC/STG with a guaranteed $7,000.00 enlistment bonus.

001017   Applicant reported to FLTASWTRACEN for AEC/STG training.

010404:  NJP for violation of UCMJ, Article 96: Absent from appointed place of duty from 0730 to 1030, 1 Apr 01, violation of UCMJ, Article 92 (3 specs): (1) Derelict in performance of duties by cheating on a test on 28 Mar 01, (2) Wrongfully copying secret material on 28 Mar 01, (3) Wrongfully wearing a tongue ring on 26 Mar 01, violation of UCMJ, Article 107: False statement.
         Award: Restriction and extra duty for 45 days, reduction to STGSN. No indication of appeal in the record.
010404:  Retention Warning: Advised of deficiency (Disobeying a lawful order and or regulation and making a false official statement.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

010621:  NJP for violation of UCMJ, Article 92 (2 specs): (1) Wrongfully consuming alcoholic beverages under age of 21, (2) Wrongfully not reporting service members consuming alcohol under the age of 21, violation of UCMJ, Article 107 (4 specs): False official statements.
         Award: Forfeiture of $584 per month for 2 months, restriction and extra duty for 45 days, reduction to STGSA. No indication of appeal in the record.
010711:  NJP for violation of UCMJ, Article 92 (5 specs): (1) Wrongfully smoking cigarettes in an unauthorized smoking area, (2) Wrongfully smoking cigarettes past the hour of 2200 while on rest, (3) Wrongfully not wearing his restricted ID, (4) Wrongfully leaving restricted area boundaries, (5) Wrongfully not reporting service members smoking cigarettes in an unauthorized smoking area, violation of UCMJ, Article 107 (2 specs): False official statements.
         Award: Forfeiture of $500 per month for 1 month, restriction and extra duty for 30 days, reduction to STGSR. No indication of appeal in the record.
010813:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.
010812:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
010816:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.
         Commanding Officer comments (verbatim). [STGSR_ has shown a strong pattern for the non-compliance of the Navy’s standards, policies, rules and regulations. He was counseled about his conduct and was given the opportunity and support to change his behavior and correct his deficiencies. STGSR_’s actions have led to his third Non-Judicial Punishment. He is not fit for further military service.]

010820:  Chief of Naval Education and Training 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 010824 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).

Issue 1: The applicant alleges breach of contract for security reclassification and being placed in a rating not of his choosing. The Board reviewed all relevant documentation and found that the applicant was properly counseled on the Naval Security Group (NSG) psychological disqualification determination for the CTM rating. And that in accordance with the original enlistment guarantee, the applicant was given the opportunity to request reassignment to another rating. The applicant acknowledged in writing, verifying his acceptance of the SGT rating. Therefore, no breach of contract found. Relief not warranted.

Issue 2: The applicant asserts that the characterization of service he received is too harsh and outweighs the infractions. It is the unanimous opinion of the Board that the applicant’s discharge characterization accurately reflects his service to his country. The applicants service is marred by the award of non-judicial punishment (NJP) on three occasions for the following infractions: unauthorized absence, dereliction in performance of duties (cheating on a test), copying secret material, wearing a tongue ring, making false official statements, consuming alcoholic beverages under age 21, not reporting other service members consuming alcoholic beverages under age of 21, smoking cigarettes in unauthorized areas and during unauthorized times, not wearing restricted ID, and leaving restricted area boundaries. Many of these infractions occurred while the applicant was in a restricted status and therefore the standards of conduct are strict and the punishment for the infraction(s) severe.

The applicant further states he was charged with underage drinking, and was neither given a Breathalyzer nor was blood taken. In addition, the applicant admitted to consuming alcohol 2-3 days per week and expressed concern for the amount of alcohol he was able to consume. The applicant was evaluated for alcohol dependence due to underage drinking. It was concluded, at the time, that the applicant’s pattern of drinking was cause for concern, but did not meet the criteria for alcohol dependence or abuse. It is further noted that the applicant believed he “needed ‘somewhat’ to be here.” The applicant subsequently completed phase one of the Intensive Outpatient Treatment Program (2 week) at the Substance Abuse Rehabilitation Department (SARD), Naval Medical Center, San Diego.

When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service as honorable. A characterization of service of under honorable conditions (general) 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. A characterization of service of under other than honorable conditions is warranted when a member’s conduct constitutes a significant departure of that expected of a sailor. The applicant’s repeated pattern of misconduct reflects his willful disregard for the orders and directives that regulate good order and discipline in the naval service. The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions. Further, there is no evidence that the command abused its authority when it initiated separation proceedings. The separation proceedings were reviewed and found sufficient in law and fact by the Chief of Naval Education and Training. It is the Boards opinion that the applicant’s conduct falls far short of that required for an honorable characterization of service and a characterization upgrade to reflect honorable service would be inappropriate. Relief denied.

Issue 3: The applicant alleges he was denied training due to the personal dislike of an STGC in his command. There is no evidence in the official record, nor did the applicant provide any certifiable documentation that there was any impropriety during his enlistment. Relief not warranted.

 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 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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