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NAVY | DRB | 2002_Navy | ND02-01325
Original file (ND02-01325.rtf) Auto-classification: Denied


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

ex-MMFR, USN
Docket No. ND02-01325

Applicant’s Request
The application for discharge review, received 20020917, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a documentary record discharge review. The Applicant listed the Disabled American Veterans as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20030828. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. 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, as submitted

1. 1. Dear Counsel of Personnel Board:

My name is ( Applicant ) and I am writing this letter to request an upgrade in discharge from a General (under honorable conditions) to an Honorable Discharge. As a younger man of nineteen in 1995, I had joined the Navy in the sincerest intention of bettering myself in our country's armed service. I had an uplifting sense of accomplishment when graduating Recruit Training, since as a GED holder I could not experience a high school graduation. Graduating was a very important and great achievement to also display my military commitment and ability to my family. Because my grandparents had raised me with my mother being a single parent with addictions, they were very proud and happy for me in my military service. In 1996, my grandmother was diagnosed with terminal ovarian and stomach cancer.

As a young man, I did not know how to cope with this and kept my burdens to myself, focusing on the service of our country. I completed a Class "A" School, with Common and Mechanical Engineering Corps in NTC, Great Lakes, Illinois. When forward deployed to Yokuska, Japan, I was informed of her painful and weakening condition. I then turned to alcohol, to erratic behavior and succumbed to the occupational stress of being a Fireman/ Machinist Mate working in One Main Machinery Room, Propulsion Division, Engineering Department aboard USS Independence CV-62, Seventh Fleet. I was experiencing various problems in the work center with training and development. I was eager and ambitious to the point where it seemed as though I was not growing or advancing fast enough- I became anxious and frustrated as I felt as though I could be more and do more in leadership and technical ability yet limited to a very slow process of advancement. I took the military requirements and passed the third class petty officer's test (NAVPERS 1070/604, page 2) and was awaiting promotion until I landed myself into immature behavioral problems. As well as the perceived limitations, I experienced many debilitating injuries and ailments and suffered from the lack of proper healing, which worsened matters. The mission as well as the chain of command demanded a light but totally active duty while I was not physically and emotionally well. I regret that I could not be and do more.

Presently, I have not lived a day without thinking of my service and experience. Everyday I would like to go back and make a better sailor and better person of myself. In 1997, I separated (somewhat reluctantly in retrospect) and tended to my family. I have since been employed in the food service industry and also decided to return to community college for Mechanical Engineering. Due to the lack of adjustment to civilian life, I found it difficult to make the transition into society. Again, I turned to alcohol and depression with my grandmother's terminal cancer. My Grandmother F_ M_, then passed away in October 1999, two years after my separation. After her death, my maturity became reality. I started Johnson & Wales University in 1999 and graduated Magna Cum Laude with an Associate in Science degree in Food and Beverage Management, May 2002. I was also involved in the Veterans Affairs Vocation Rehabilitation Program while attending the University.

I also have been integral in community service volunteering at the Providence, Rhode Island Veteran's Affairs Medical Center. I, as a grateful American, must serve our veterans. I have donated time, energy and monetary funds to organizations, charities and many social projects. I am an active member in my local religious community, serving the needs of senior educators and neighbors alike. I have sought treatment for my disabilities and put the service of my country and defending the United States Constitution first and foremost. I am now attending Rhode Island's Roger Williams University to complete a Bachelor Degree in Public Administration as a graduation candidate of 2004/2005. I plan to attend law school at Roger Williams University to continue work defending our Constitution. I am involved in volunteering in campaigning and politics in my town and in the State of Rhode Island.

But if none of the above evinces my character the following may show my true colors. During World War Two, on the 1 November 1944, USS Abner Read (DD526) was sunk by a kamikaze attack in the battle of Leyte Gulf, PI. My grandfather, R---- M----, was manning a gun when the Japanese Zero struck. He received shrapnel injuries and was ordered to abandon ship as it sunk. The surviving crew spent two days in the waters before being rescued. My grandfather is a World War Two hero who received the Purple Heart in 1944 while serving six years in the Navy. Our family always thought the Purple Heart award was valid. Until 2001, my grandfather also knew of his honor of receiving the Purple Heart- that is until the Veteran's Administration alleged that there was not proper documentation on his discharge, DD214. To make a long story short, I intensely researched the matter and found a typographical error on a Declassified Purple Heart recommendation letter. I contacted the Honorable J--- R---, Senator of Rhode Island and he contacted the Naval Personnel Records Center and they finally confirmed the validity. Our family was distraught when we found the discrepancy and elated when R_ M_, my grandfather, received the DD215 with the documented Purple Heart addition. I have taken care of my grandfather through Coronary bypass surgery, Corroded Artery surgery and his illnesses since my grandmother passed and I moved in with him in 1999.

I have been an example in my family by managing my grandfather's affairs- and our household, diligently and successfully completing my education and my professional life as well as being a model family member and committed community-service member. I have many people who are willing and overjoyed to attest to my sincerity, commitment, philanthropy and love of my State, Nation, it's people and our Constitution. From family to educators, professional colleagues and shipmates, I am valued as someone worth testifying for, if your Honors and the Distinguished Counsel Board requires. I will continue being an outstanding citizen while defending the Constitution in any capacity; I truly desire to complete my obligation with the most committed diligence. God Bless the USA and her armed services.

I am requesting an upgrade in discharge not motivated by any other reason than an overwhelming loyalty to better serve the United States of America. I will be available for any questions and any process that is required to display sincerity or credibility. I am undergoing medical treatment to hopefully recover and serve. our country when called upon.

Gratefully yours,

2. Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current General Under Honorable Conditions, to that of Honorable.

The FSM served on active service from October 25, 1995 to October 20, 1997 at which time he was discharged due to a pattern of misconduct, with the current General discharge.

The FSM contends the current discharge is improper, and by virtue of the application, requests a review of the evidentiary record for impropriety.

This creates a need for a review of the application of the standard, for the Board to determine that the Applicant’s discharge was improper. The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, involving his claimed in-service family problems / emergency to include any additional issue upon which the Applicant submits to the Board’s discretionary authority.


We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the Applicant.

Respectfully,

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant ' s DD Form 214 (2 copies)
Table of Contents page
Letter from Applicant dated, June 1, 2003
Statement (19 pages)
 Applicant 's resumé
Pictures
Certificate of live birth
Johnston Public Schools, Progress Report, Grades Four, Five, Six
Secondary School record (2 pages)
Notice from State of Rhode Island, Department of Human Services
Letter from an attorney, dated July 21, 2000
Senior High School Equivalency Diploma dated May 17, 1995
Individual Income Tax Return 1997
Form W-2 1997
Form for Office of Admissions and Records, Community College of Rhode Island, dated July 2, 1998
Grade report from Community College of Rhode Island, Fall 1998
Credit report from experian , dated March 15, 1999 (page 3 of 6)
Law enforcement short form report, dated June 14, 1999
Certificate of completion, Open Water Diver, dated July 1, 1999
Ocean Reef Club flyer
Partial copies of W-2 1997 and 1998
Two business cards
Certificate of death
Change of address notice, dated October 20, 1999
Rating decision, dated March 15, 2000 (3 pages)
Certificate of acceptance, dated October 24, 1995
Certificate of dedication
Rifle qualification
Administrative remarks page, dated January 19, 1996
Certificate of completion, dated April 25, 1996
Special request/authorization, dated May 5, 1997
NAVPERS 1070/604
Personnel list as of September 1997
Fundamentals and systems summary (2 pages)
Final qualification as CV 1200 PSI cold iron watch (10 pages)
Navy occupation/training and awards history
Enlisted qualification history form
Leave and Earnings Statement dated 1-31 July 1997
Letter to girlfriend
Sixteen pictures, Armed Forces Liberty Pass (2 copies), United States Navy ATMs at Sea (2 copies), Restricted personnel ID card (2 copies)
Letter to Applicant , undated
Letter to Applicant , dated November 13, 2001
Page 3036 from telephone book
Seven pictures, one American Airlines Boarding Pass
Picture descriptions
Inside of a birthday card
Character reference, dated March 9, 2003
Pictures
Castle Hill Inn & Resort flyer
Letter to Applicant , dated March 9, 2000
MHBSS - SATP Resources for Anger & Emotion Management Skills, Group Contract
Letter from Department of Veterans Affairs, dated November 16, 2001
Authorization and certification fo Entrance or reentrance into rehabilitation and certification of status
Certificate of completion, dated May 18, 2000
Letter to Applicant , dated June 19, 2000
Johnson and Wales University, Degree audit report, dated March 26, 2002
Associate in Science Degree, dated March 3, 2002
Letter re: paid in full student loan, dated April 29, 2002
Letter from Department of Veterans Affairs, dated July 20, 2002
Letter from Office of the Registrar, dated September 11, 2002
Roger Williams University, B.A. Degree Plan, Catalog Year: 2001-2002
Student confirmation
Roger Williams University grade report, second semester sophomore and first semester junior
Office of the registrar college use only page
Fogarty Center flyer

Certificate of appreciation, awarding 1 day off
Training schedule
Training schedule
Certificate of Appreciation, dated September 1, 2000
Letter from Department of Veterans Affairs, dated June 8, 2001 (grandfather)
Letter to Applicant from Board for Correction of Naval Records, dated August 3, 2001 (grandfather's)
Award of Purple Heart Medal (grandfather's)
Honorable Discharge (grandfather's)
Letter from United States Senate, dated May 15, 2002
Newspaper article
Guardianship papers, dated October 19, 2002
Certificate of Appointment
Letter from Department of Veterans Affairs, dated January 2, 2003
Letter from Department of Veterans Affairs, dated December 29, 2002

Letter from Special Olympics, Rhode Island
Registered Volunteer, State Summer Games Sign-up sheet
Certificate of Award, dated May 1, 2003
Tzedek Tzedek paper
Christian Children's Fund
Letter to Applicant , dated December 2000
Project Linus flyer
Letter to Applicant from United States Marine Corps
Thank you from Rhode Island Blood Center
Letter from Navy Federal Credit Union, dated December 9, 2002
Editor's Choice Award, dated May 2003
Letter from Poetry.com, dated January 22, 2002
Poem "Alluring the Mermaid"
Letter from Poetry.com, dated January 28, 2003
Criminal history, dated March 12, 2003
Portrait of the Champion (eNFp) paper
Standard First Aid card from American Red Cross
Life Link card
Ocean Reef Community Association card
Roger Williams University, UniCard Student card
National WWII Memorial, 2003 Charter Member card
Johnson & Wales University card
International Food Safety Council card
Sixteen business cards
List of references (4 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     951024 - 951025  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 951026               Date of Discharge: 971020

 Length of Service (years, months, days):

         Active: 01 11 25
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 11 GED           AFQT: 58

 Highest Rate: MMFN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.67 (3)    Behavior: 2.00 (3)                OTA: 2.44

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR, MUC

 Days of Unauthorized Absence: None

 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 :

970819:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0730, 970730 until 0120, 980801 (1 day/surrendered).
         Award: Forfeiture of $300 per month for 2 months, restriction and extra duty for 45 days, reduction to MMFA. Forfeiture of $300 for 1 month and reduction suspended for 3 months. No indication of appeal in the record.
970821:  Retention Warning: Advised of deficiency (Your nonjudicial punishment of 970817, for VUCMJ, Art. 86 unauthorized absence from 0730, 970730 until 0120, 970801.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
970927:  Vacate suspended forfeiture of $300.00 and reduction to MMFA awarded at CO's NJP dated 970819, due to continued misconduct.

970927:  NJP for violation of UCMJ, Article 91 (2 specs): (1) Failure to obey lawful order from a petty officer on 970912 , (2) Failure to obey a lawful order from a Chief Petty Officer on 970912 , violation of UCMJ, Article 92: Dereliction of duty by willfully failing to take readings on the shaft bearing on 970912, violation of UCMJ, Article 86: Unauthorized absence from 970130 until 970420, violation of UCMJ, Article 87: Missed movement of ship on 970215. [Partial extracted from CO's letter dated 970928.]
         Award: Forfeiture of $450 per month for 2 months, restriction and extra duty for 45 days, reduction to MMFR. No indication of appeal in the record.
970928:  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 970927, and misconduct due to a pattern of misconduct as evidenced by your Commanding Officer's nonjudicial punishments of 970927 and 970819.
970928:  Applicant advised of 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

970918:  Commanding Officer directed discharge general (under 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 19971020 with a characterization of 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: In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable . A characterization of service of general (under honorable) conditions is warranted when the service member’s conduct constitutes a departure from that expected of a Sailor. While he may feel that his immaturity and family problems were contributing factors, they do not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service. The record is void of any evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. The Applicant’s service record is marred by award of non-judicial punishment (NJP) on two separate occasions, to include the appropriate retention and discharge warnings . The Applicant’s summary of service clearly reflects the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, and demonstrated he was unsuitable for further service. An upgrade to honorable would be inappropriate. Relief denied.

 T here 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. Evidence of continuing educational pursuits, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct. At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty. Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Representation at a personal appearance hearing is recommended but not required.

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 “ 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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