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NAVY | DRB | 2003_Navy | ND03-00998
Original file (ND03-00998.rtf) Auto-classification: Denied


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

ex-SA, USN
Docket No. ND03-00998

Applicant’s Request
The application for discharge review was received on 20030521. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests 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. The Applicant failed to respond by the deadline date to a letter requiring the Applicant to notify the Naval Discharge Review Board of intention to be present for the requested personal appearance hearing. Therefore, a documentary review was conducted, and the Applicant is not eligible for further review by this Board.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040728. 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: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “My Discharge was inequitable because it was based on one isolated incident in 16 mos of Service. I was Falsely and Maliciously accused and Maligned of and Accused of underming Morale, Destroying Comrodre and having a Detrimental Impact on the Command I was constantly Harrased Threatened with my Life assigned to the Brig of the USS Kennedy there I was Assaulted by an overzealous Petty Officer who was later disciplined after serving my punishment I was given an other than Honorable Discharge all for Studying Bible Based Literature.
Since my Seperation I have became a Productive Member of Society. A full time Minister Gainfully employed by a MAJOR Cooperation and have shared countless hours in volunteer work and a Worldwide Bible based Educational Program
I feel that if the facts of the case are Presented Before an Unbias Jury of the Review Board Perhaps it will show that An Injustice was Done
I have been Denied what I valu most – an Education to improve myself I have been made an skape goat when I fact I am Taught at Romans 13:1 to be in subjection to the Superior Authorities I was not fully Aware of the Impact nor were my rights explained to me Fully. This Discharge was not as a Result of a court martial But I was simply asked if I wanted to get out or Face other considerations.

I therefore request a Personal Appearance before the Navy review Board to give testimony and state the facts of the case and Do Formally ask for a change of Discharge to one of Honorable or General under Honorable Conditions my actions in no way was worthy of such a Discharge and I do Appeal.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     880610 - 890607  ELS
                  USNR (DEP)      890707 – 890801  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 890802               Date of Discharge: 901205

 Length of Service (years, months, days):

         Active: 01 04 04
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 43

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.80 (1)    Behavior: 2.80 (1)                OTA: 2.80

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

900711:  NJP for violation of UCMJ, Article 113: Misbehavior of a sentinel, harassing the pilothouse on the sound-powered phones.
         Award: Forfeiture of $422 per month for 1 month, restriction and extra duty for 10 days. Forfeiture suspended for 3 months. No indication of appeal in the record.
900711:  Retention Warning from USS SEATTLE (AOE-3): Advised of deficiency (Misconduct due to VUCMJ Article 113: Misbehavior of a sentinel.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

900725:  Vacate forfeiture awarded at Commanding Officer’s NJP dated 900711.
900725:  NJP for violation of UCMJ, Article 90: Failure to obey a lawful order from Commanding Officer to muster with Master-at-Arms on 1900 and 2145, 900716 and 0615, 900718.
         Award: Restriction and extra duty for 10 days. No indication of appeal in the record.
900915:  NJP for violation of UCMJ, Article 86 (3 specs): Unauthorized from appointed place of duty on 900903, 900902 and 900904, violation of UCMJ, Article 92: Disobey a PO2 on 900902, violation of UCMJ, Article 107: Make a false official statement on 900902.
         Award: Forfeiture of $406 per month for 2 months, restriction and extra duty for 30 days, reduction to SA. No indication of appeal in the record.

900922:  Health Record Entry: [… recently converted has converted his religion from Methodist to Jehovah’s witness who told his supervisor he did not want to work anymore. He goes on to describe the incompatibility of naval service and his new religion. He now refuses to work and desires to get out of the navy. Speech – monotonous & tangential pattern using repetitive biblical quotes.]
900923:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 91 (2 specs):
         Specification: Willfully disobey a PO1 and CPO.
          Finding: to Charge I and the specifications thereunder, guilty.
          Sentence: Bread and water for 3 days, confinement at hard labor for 13 days.
         CA action 900923: Sentence approved and ordered executed except for that portion of the punishment extending to confinement at hard labor is deferred until 900924. The execution of that part extending to bread and water is suspended for three months and unless sooner vacated will be remitted without further action. The USS JOHN F KENNEDY is designated as place of confinement.

900924:  USS SEATTLE (AOE-3) notified Applicant 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.
900924:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

901007:  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’s comments: [He has no regard for authority and appears to think that he is not required to perform his duties. He treats orders as requests and if he does not approve of them, he ignores them. He is undisciplined and has no place in the navy.]

901115:  CNMPC 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 19901205 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 contends that he served the United States well and that his discharge was based on one isolated incident in 16 months and that he is therefore entitled to an upgrade. When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. An Under Other Than Honorable Conditions discharge 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. The Applicant’s service was marred by three nonjudicial punishment proceedings for six violations of the UCMJ. The Applicant was also convicted at courts martial for a violation of Article 91 of the UCMJ for willfully disobeying a petty officer and chief petty officer. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

The Applicant contends that his problems in the Navy can be attributed to his "studying bible based literature". While he may feel that his religious pursuits were the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural error or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no such errors after a review of Applicant’s case. 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 naval service. The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided any documentation for the Board to consider. Relief denied.

Regarding education, the Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.


Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560A, Change 8 effective 21 Aug 89 until 14 Aug 91), 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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