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NAVY | DRB | 2002_Navy | ND02-00948
Original file (ND02-00948.rtf) Auto-classification: Denied


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

ex-TMSN, USN
Docket No. ND02-00948

Applicant’s Request
The application for discharge review, received 020618, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region. The Applicant did not list any representative on the DD Form 293. Subsequent to the application, the Applicant obtained representation by the American Legion.

Decision

A personal appearance hearing was conducted in Washington, D.C. on 030522. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no impropriety or inequity in the characterization of the Applicant’s service or the narrative reason for her discharge. The Board’s vote was unanimous that the character and the narrative reason for the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT-COMMISSION OF A SERIOUS OFFENSE, authority: MILPERSMAN, Article 3630600.

 A personal appearance discharge review was conducted in Washington, D.C. on XXXXXX. 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/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

 If appropriate add the following:
The NDRB did note an administrative error on the original DD Form 214. Block 28, Narrative Reason for Separation should read: “_____________” vice “__________”. The original DD Form 214 should be corrected or reissued as appropriate.







THIS SHELL IS FOR COSO.

THE FINDING FOR MISCONDUCT IS EFFECTIVE FOR 890525 - 890820 ONLY.

SPN CODE HKQ THE SPN CODE IS EFFECTIVE 860911 - 930627.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

[From Applicant's statement]
 Dear Sir:

The following issues are the reasons I believe my discharge should be upgraded to Honorable. If you disagree, please explain in detail why you disagree. The presumption of regularity that might normally permit you to assume that the service acted correctly in characterizing my service as less than honorable does not apply to my case because of the evidence I am submitting.
ISSUES

1. My command abused its authority when it decided to discharged me and decided to give me a bad discharge.
I was discharged on July 26, 1989 with an "under other than honorable conditions" with a narrative reason for separation characterized as misconduct-commission of a serious offense. The circumstances surrounding my discharge and character was when I requested closed Captain's Mass on May 8, 1989 after reporting that I was sexually assaulted, and harassed by TM2 R_ (while stationed at NTC, Orlando, Fl.), Lt. Cmdr R. S_ (Division Officer of Deck Department), BM2 F_ (LPO of Deck Division). See attached documents 3, and 4.

On June 8, 1989, I was ordered to Captain Mass while out to sea on a six months deployment. I was told about the charges brought against me: Disobeying a lawful order and standing an improper watch while underway. I was in training for deck watches and had not had any watch station qualifications signed off. See attached documents 4, 9, and 10.

I was ordered to the brig for 3 days with water only. During this time, I was not allowed to sanitize myself, nor was I allowed to sleep.
Immediately after serving this punishment, I was continuously restricted to the ship. See attached documents 4 and 8.

I requested legal representative or counsel and was refused legal representative or counsel before, or after mass at any time while attached to the ship. However, I was allowed to see the ship's Chaplin. See attached document 4.

 2. My record of NJP's/Article 15s indicates only isolated or minor incidents.
To the best of my knowledge, if I have received a NJP, or Article 15, it was minor and isolated from the events that led up to my discharge. Please be advised that I have requested an undeleted copy of my full service personnel record and have yet to receive one. See attached document 16, and 17.

 3. The punishment I got was too severe compared with today's standard.
To receive the punishment of three days in the brig not knowing what I had done wrong along with an indefinite restriction aboard the ship is consider as cruel, harsh, and unjust. My punishment was three days in the brig. The indefinite restriction to the ship after time served in the brig was definitely a double standard punishment under the UCMJ Code. With today's standards, I should have had legal counsel, medical treatment for the after effects of sexual trauma and dental trauma. See attached document 4, 6, 8, 11, 12, and 13.

When I requested closed Captain's Mass, Lt. Cmdr. R. S_ wrote a letter to the commanding officer violating my rights and the UCMJ Code. See attached documents 7, and 10.

Even after my service time in the Navy, I continued to be harassed and my character assassinated by Lt. Cmdr R. S_, BM2 F_, Chief C_. See attached document 7.

 4. The punishment I received at discharged was too harsh --- it was much worse than most people got for the same offense.
I have had the opportunity to speak to male and female veterans that have experienced sexual harassment, and assault and they have received at least a "General under Honorable Conditions" Discharge, which entitles them to receive physical and mental treatment for the injuries they received. I was not notified, nor brief about the type of discharge I was to receive and the ramifications it warrants. It was only when I was discharged on July 26, 1989 when I was told that I could not received any medical or dental treatment and benefits from Hampton VA Medical Center.

 5. Certain other problems impaired my ability to serve.
The incidents that occurred to me while I was stationed at NTC Orlando, Florida in 1986, and USS Shenandoah, AD44 impaired my ability to serve. See attached document 4, and 11.

 6. My ability to serve was impaired because I was not able to work in my rate.
See attached documents 1, 3, 11, and 12.

 7. I had applied or tried to apply for a hardship discharge but was unfairly told to forget it.
See attached documents 3, and 11.

 8. I had applied or tried to apply for a compassionate reassignment but was unfairly denied or told to forget it.
See attached documents 3, 11, and 12.

 9. My ability to serve was impaired because of childcare problems.
 I do not have excuses for having my baby in 1987. I did the best I could as a responsible single parent and sailor. I requested hardship duty and compassionate reassignment through my command for the reasons of having no known relatives on the East Coast. I had to request leave before going underway to take my baby home to the West Coast. My leave was denied even when I had leave time available to take. See attached documents 2, and 4.

10. I was so close to finishing my tour that it was unfair to give me a bad discharge.
See attached documents 1-6, and 8-14.

11. I have been a good citizen since discharge.
Although I have had many challenges with dealing with my issues, I have been a good citizen since my discharge. I have tried to seek help with dealing with my issues from the military since May 8, 1989 before I was discharge from the military. Nobody would listen or help me. See attached documents 6, 9, 15, and 18.

I have been shamed and injured from my military career. I have been told that I am not recognized as a veteran and do not qualify for Counseling and Medical Treatment from The Department of Veterans Affairs Medical Centers for the past thirteen years. I am not just requesting an upgrade in my discharge, I am requesting help with my service connected issues that have crippled my life. I am requesting the right to live my life as I did when I enlisted in the United States Navy to serve my country and the pride I had along with dignity and honor.

Very Respectfully, [Applicant]
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant's DD Form 214 (2 copies)
Statement from Applicant dated May 26, 2002 (2 copies)
Twenty-two pages from Applicant's service
Counseling and Medical treatment statement from Applicant
Letter from Department of Veterans Affairs to Applicant dated June 14, 2002
Letter to NAACP dated July 7, 1989
Criminal record check from City of Hampton dated June 25, 2002
Additional Supporting Documentation received May 22, 2003 :

Letter from Applicant dated February 19, 2003
Reference Letter from T_ S_, USN Veteran, dated May 19, 2002
Reference Letter from Pastor, W_ B_, USAF, Retired dated May 13, 2003
Reference Letter from A_ B_ dated May 14, 2003
Reference Letter from M_ J_, Operations Coordinator, Newport News Public Schools date August 23, 2002
Reference Letter from R_ B_, Owner of Research, Environmental & Management Support dated May 14, 2003            
Unofficial Transcript from Thomas Nelson Community College dated May 5 through May 15, 2003 (3 pages)
Associate of Applied Science in Computer Electronic Technology Degree dated December 1991
GPA from ECPI
Insurance License from Commonwealth of Virginia State Corporation Commission Bureau of Insurance dated February 13, 2003
Certificate of Excellence (Microsoft Certified Professional) (undated)
Certificate of Achievement (Create and Managing a Web Server Using Microsoft Internet Information Server 4.0) from Microsoft Technical Education Center dated February 10, 1999
Certificate of Achievement (Administering Microsoft Windows NT 4.0) from Microsoft Technical Education Center dated January 11-14, 1999
Certificate of Achievement (Supporting Microsoft Windows NT 4.0 Core Technologies) from Microsoft Technical Education Center dated January 18-22, 1999
Certificate of Achievement (Supporting Microsoft Windows NT Server 4.0 Enterprise) from Microsoft Technical Education Center dated February 5, 1999
Certificate of Completion (Principles of Real Estate) from College of Real Estate dated April 12, 1996
Letter of Verification from C.U.R.A., Inc (Completion of a long term residential drug and alcohol treatment program) dated April 16, 2003
Certificate of Achievement (Internetworking Microsoft TCP/IP on Microsoft Windows NT Server 4.0) from Microsoft Technical Education Center dated February 29, 1999

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     850909 - 851021  ELS
                  USNR (DEP)      860115 - 860622  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 860623               Date of Discharge: 890726

 Length of Service (years, months, days):

         Active: 03 01 04
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4

 Education Level: 12 2/3           AFQT: 42

 Highest Rate: TMSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.73 (3)    Behavior: 2.80 (4)                OTA: 3.10

 Military Decorations: None

 Unit/Campaign/Service Awards: BER

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

860702:  Applicant briefed on Navy's policy of drug and alcohol abuse.
860717:  Applicant briefed on Navy Standards of Conduct.

880111:  Not recommended for promotion on Enlisted Evaluation Report for period 870124 to 880111. Reporting Senior's comments: "TMSN [Applicant]'s performance has been below average. Cannot complete duties completely or on time. Requires routine supervision. Verbally counseled 4 times concerning financial responsibilities. Finally resulted in a formal counseling sheet regarding indebtedness. Verbally counseled numerous times concerning unauthorized absence. Finally resulted in 2 formal counseling sheets and XOI."

880118:  Commanding Officer endorses Applicant's rebuttal to Evaluation Report for period 870124 to 880111; forwards to NAVMILPERSCOM. Applicant stated that her problems with indebtedness have been overcome, that her problem with the large amount of time off was attributable to child-care and treatment of injuries sustained in a car accident, and that she has learned from her mistakes.

880201:  Applicant in unauthorized absence status from 0630 to 0700.

880220:  NJP for violation of UCMJ Article 112a: Use of cocaine.
         Award: Forfeiture of $376 per month for 2 months, restriction and extra duty for 45 days, reduction to TMSA. No indication of appeal in the record.
880222:  Retention Warning: Advised of deficiency (Misconduct due to minor disciplinary infractions). Applicant notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

880225:  Applicant briefed on Navy policy concerning dependent care.

880524:  Applicant in unauthorized absence status from 0630 to 0715.

880805:  Applicant in unauthorized absence status from 0630 to 1230.

880819:  Applicant in unauthorized absence status from 0630 to 0730.

880902:  Applicant in unauthorized absence status from 0630 to 0900.

880917:  Applicant in unauthorized absence status from 0500 to 0700.

881001:  Applicant in unauthorized absence status from 0545 to 0815.

881008:  Civil Conviction: charged with being drunk in public/profanity.
 Sentence: Fine $10.00 plus court cost.
881015:  Applicant in unauthorized absence status from 0530 to 0740.

881016:  Applicant in unauthorized absence status from 0600 to 1015.

881219:  Civil Conviction: charged with (1) speeding (74/55mph); (2) seatbelt required front seat; (3) driving with a suspended license.
 Sentence: (1) Fined $10, court costs; (2) Fined $25; (3) Fined $100.00, 10 days in jail (suspended), driving privileges suspended for 10 days.
890609:  NJP for violation of UCMJ Article 86 (3 specs): (1) Unauthorized absence from appointed place of duty, (2) Unauthorized absence from unit, (3) Unauthorized absence from unit; violation of UCMJ Article 90: Disobeying a commissioned officer; violation of UCMJ Article 91 (3 specs): (1) Disrespect to a petty officer, (2) Disobeying a lawful order, (3) Disobeying a lawful order; violation of UCMJ Article 134: Not standing proper lookout.
         Award: Bread and water for 3 days and process for discharge. No indication of appeal in the record.
890611:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct, misconduct due to a commission of a serious offense, and misconduct due to in-service drug abuse. Applicant refused to sign; witness signature attests to Applicant's acknowledgement of notification.
890611:  Applicant advised of her rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights. Applicant refused to sign; witness signature attests to Applicant's counseling and acknowledgement of rights; witness further attests to Applicant's deliberate intent to not respond.

890617:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to due to pattern of misconduct, misconduct due to the commission of a serious offense, and misconduct due to drug abuse. Commanding Officer’s comments: "It is highly recommended that TMSN [Applicant] be discharged with an other than honorable discharge. TMSN [Applicant] has received two CO's NJP's since reporting subsequent to her first NJP on 88Feb20, TMSN [Applicant] was counseled, warned and signed a Pg 13 counseling/warning entry regarding the consequences of her continued misconduct. Moreover, TMSN [Applicant]'s use of cocaine, one spec of Art 90 and 3 specs of Art 91 all constitute the commission of a serious offense IAW Ref B. TMSN [Applicant]'s drug use and continued negative behavior indicate she should receive an admin discharge under other than honorable conditions. Additionally, TMSN [Applicant]'s refusal to sign documentation relating to her rights during this ADSEP processing is indicative of her belligerent nature and her unwillingness to follow regulations."

890622:  COMNAVMILPERSCOM WASHINGTON DC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. CNMPC further directed that the command offer the Applicant in-patient treatment at a VA hospital.

890628:  Applicant refused substance abuse evaluation.

890704:  Applicant refused to sign Performance Evaluation for period 890201 to 890706.

890712:  Applicant advised of right to in-patient treatment a VA hospital for drug and/or alcohol dependency; Applicant declined treatment.

890714:  Applicant again advised of right to in-patient treatment a VA hospital for drug and/or alcohol dependency; Applicant declined treatment.

890721:  NAVLEGSVCOFF NORFOLK VA releases message to COMNAVMIL-PERSCOM WASHINGTON DC stating that the Applicant has initiated a UCMJ Article 138 complaint against USS SHENANDOAH. In addition to other charges, Applicant alleges undue influence in the waiver of her administrative separation board. In view of time needed to investigate charges, request that discharge be stayed pending outcome of investigation.

890723:  COMNAVMILPERSCOM WASHINGTON DC directed the Applicant's discharge per CNMPS WASH DC msg 221951Z JUN 89 be executed.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 890726 under other than honorable conditions for misconduct due to commission of a serious offense (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).

Issues 1-10: Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the Applicant’s enlistment. While she may feel that her perceived harassment and childcare problems were contributing factors, they do not mitigate her disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating she was unsuitable for further service. The record is void of any evidence to support a claim of harassment or unfair treatment. The Applicant was responsible for her conduct and she should be held accountable for her actions. Her service record is marred by award of non-judicial punishment (NJP) on two separate occasions for several offenses including illegal drug use and disobeying a commissioned officer, thus substantiating the misconduct . Furthermore, t he Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board (NDRB). There is no requirement or law that grants recharacterization solely on the issue of obtaining Veteran’s benefits and this issue does not serve to provide foundation upon which the Board can grant relief. It must be noted that most Sailors serve honorably and well and therefore earn honorable discharges. In fairness to those Sailors, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. An upgrade to general (under honorable) conditions would be inappropriate. Relief denied. For the Applicant’s edification, Sailors guilty of illegal drug use normally receive a discharge characterization of under other than honorable conditions.

Issue 11: 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. However, 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. Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. E vidence of continuing educational pursuits, a positive employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence that the Applicant is living a drug free life style, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct. Though the Board noted the positive steps the Applicant has made since leaving the service, as evidenced by the testimony and post service documentation provided, it did not view that as sufficient to mitigate her misconduct while on active duty. Relief denied.


Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560A), Change 7, effective
25 May 89 until 20 Aug 89, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

 B. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice Article 90, Willfully disobeying lawful order of superior commissioned officer, UCMJ Article 91, Insubordinate conduct, and/or UCMJ Article 112a, Wrongful use of a controlled substance if adjudged at a Special or General Court-Martial.
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 " afls14.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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