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NAVY | DRB | 2004_Navy | ND04-00025
Original file (ND04-00025.rtf) Auto-classification: Denied


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

ex-FR, USNR
Docket No. ND04-00025

Applicant’s Request
The application for discharge review was received on 20031101. The Applicant requests the characterization of service received at the time of discharge be changed to general (under honorable conditions). The Applicant requests a documentary record discharge review. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040712. 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/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “Document (1): I was told by my work center supervisor, EN1 F_, to take the rest of the day for liberty. I had been working / on duty for 96 hours straight, with 4-5 hours sleep a night we were pre-pairing the main space for ATG + PEB for testing. There was another 1 st Class who heard EN1 F_ tell me to take liberty when I arrived back to the ship after liberty, my Cheng asked where I had been. I informed him that I had been granted liberty by EN1 F_ earlier that day, but EN1 F_, according to the Chief E_ Officer, had no authority to grant liberty, and did not tell the chain of command about granting me liberty. When EN1 F_ was confronted wit the issue, he told the Cheng he gave me no such liberty. Upon hearing that they were reporting the issue to the Captain for Captain’s mast. I asked OS1 O_ who directly heard EN1 F_ grant me liberty to please submit a letter to the Captain and to accompany me to Captains mast as a witness. He said “Absolutely”, whe Captain’s mast was held, not only was the letter he had written not used, but OS1 O_ was not even present for the proceedings. I asked EN1 F_ when he wasn’t present and his reply was “I talked to him and he has decided to distance himself from your issue.” Not only was my character witness not present at these preceedings, but his much needed documentation & testimony was not even utilized to substantiate my
claims.
2. Document (2): During my tour in Sasebo, Japan, I had suffered severe mental stress & disorder due to this incident; which escalated my alcohol abuse and addiction. I had requested to take leave 5 times to address the situations that were occurring stateside with my spouse and to seek help to handle my addiction. Not once was I ever referred to or sent to a substance an alcohol abuse program, even through my chain of command had full awareness of my addiction.
3. Document (3): After returning from Japan to Bangor Subase, Bangor, WA. I continued to work hard and stay focused on maintaining focus and ensuring that the U.S. Navy was given 110% percent; every day pending my discharge. I was given the ability to defending my country & serve the people in it; and if given the chance, I would have stove to adhere to the U.S. Navy’s principals.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s Court Memorandum, dated December 06, 1996.
Administrative message, dated June 02, 1996
Unclassified Message, dated June 05, 1996
Applicant’s Record of counseling, dated September 1, 2000
Character witness statement, B_ F_ V_, member of congress, dated March 1, 1995.
Letter of Commendation, H_ J_ M_, Captain, U.S. Navy, undated.
Certificate of appointment, dated April 29, 1995.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     None
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 941018               Date of Discharge: 010202

 Length of Service (years, months, days):

         Active: 06 00 02
         Inactive: 00 03 14

 Age at Entry: 22                          Years Contracted: 8

 Education Level: 12                        AFQT: 72

 Highest Rate: FA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.00 (2)    Behavior: 2.00 (2)                OTA: 3.30

 Military Decorations: None

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

 Days of Unauthorized Absence: 1,282

 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 :

950201:  Commenced active duty for 36 months.

 960322:  NJP for violation of UCMJ, Article 86: Unauthorized absence, leaving place of duty, violation of UCMJ, Article 128: Assault and Battery, violation of UCMJ, Article 137.73: Drunk and disorderly, violation of UCMJ, Article 137.76: Drunkenness incapacitation for performance of duties.
         Award: Forfeiture of $478.00 per month for 2 months, restriction and extra duty for 45 days, reduction to FA. No indication of appeal in the record.

961206:  NJP for violation of UCMJ, Article 92: Failure to obey order or regulation.
         Award: Forfeiture of $437.00 per month for 1 month, restriction and extra duty for 60 days, reduction to FR. No indication of appeal in the record.
961206:  Retention Warning: Advised of deficiency (unsatisfactory performance), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

970130:          Transferred Applicant to Japanese authorities per SOFA.

970131:  Held by civil authorities

970528:  Civil Conviction: Article 235 (larceny), Article 238 (Quasi Robbery), Article 240 (Robbery resulting injury), Article 243 (Attempts), Article 60 ( Co-principals). Court was held at Sasebo Branch, Nagasaki District Court, Sasebo City, Nagasaki Prefecture, Japan, on 970312, 970416, 970423, and 970514. Result of the trial: The court found accused guilty as charged, in accordance with the plea. Sentence: The accused was sentenced to imprisonment at forced labor for five years and six months; however, forty days credit was applied to each sentence due to pretrial confinement. Appeal: The accused nor the prosecution appealed the sentence to the next higher court within 14 day limit prescribed by law. The sentence became final on 970528.

980131:  Held beyond expiration of active duty due to confinement in foreign civil conviction.

 000808:  NJP for violation of UCMJ, Article 86 (2 specs): Unauthorized absence.
         Award: Forfeiture of $502.00 per month for 1 month, restriction and extra duty for 30 days. No indication of appeal in the record.
980710:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, commission of a serious offense, and civilian offense
980810:  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

980820:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. Commanding Officer’s comments appropriate: All enclosures have been carefully considered. FR P_ (Applicant) lacks potential for continued naval service for reasons noted in paragraph 1 (a) above. [a: Reasons for processing: (1) misconduct due to a civilian conviction as evidenced by a foreign civil conviction on 970514 Article 238 (quasi-robbery), Article 60 (co-principals), Article 243 (attempts) and former clause of Article 240 (robbery resulting injury); (2) misconduct due to commission of a serious offense as evidenced by a foreign civil conviction on 970514 for violations of Japanese Penal Codes Article 60 (co-principals), Article 243 (attempts) and former clause of Article 240 (robbery resulting injury); CO’s NJP on 6 December 1996 for violation of UCMJ Article 92 (2 specs) – failure to obey order or regulation; and CO’s NJP on 22 March 1996 for violation of UCMJ Article 128 (assault and battery); and (3) misconduct due to a pattern of misconduct as evidenced by a foreign civil conviction on 14 May 1997; CO’s NJP on 6 December 1996 for violation of UCMJ Article 92 (2 specs) – failure to obey order or regulation; and CO’s NJP on 22 March 1996 for violations of UCMJ Article 86 (2 specs) – unauthorized absence, and leaving place of duty; Article 128 (assault and battery); and Article 134 (2 specs) – drunk and disorderly conduct and drunkenness – incapacitation for performance of duties through prior wrongful indulgence in intoxicating liquor or drugs. I strongly recommend that FR P_ (Applicant) be immediately separated from the naval service and that the characterization of separation be other than honorable. FR P_ (Applicant) estimated release date from civilian confinement is October 2002.

980924:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

000802:  Returned to military authorities at 0700, on 000802. Applicant severed 1282 days in civil confinement. Applicant transferred to TPU Puget Sound for separation processing.

001201:  Commanding Officer, Transient Personnel Unit Puget Sound recommended for administrative separation. Commanding Officer comments: FR W_ E_ P_ (Applicant) is being processed for misconduct-pattern of misconduct, misconduct-commission of a serious offense and misconduct civilian conviction. I feel he has no potential for further naval service and I recommend discharging him with an other than honorable discharge.

001206:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

010104:  Administrative separation package was returned.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010202 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).

 Issues 1 & 2. The Applicant contends that his problems in the Navy can be attributed to mental stress. While the Applicant may feel that his “mental stress” was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The Applicant contends that his command had full awareness of his addiction, however there is no evidence in the record to support the command having prior knowledge of the Applicant’s addiction. The evidence of record does not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief on this basis is denied.

Issue 3. A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor. The Applicant’s service was marred by award of nonjudicial punishment (NJP) on three occasions for unauthorized absence, assault, drunk & disorderly conduct, incapacitated for performance of duties, disobeying a lawful order, larceny, quasi robbery, robbery resulting in injury, attempts, and co-principals. In addition the Applicant was transferred to Japanese authorities for civil conviction charges and confined for 1,282 days. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for a general (under honorable conditions) characterization of service. The evidence of record and statements provided by the Applicant does not demonstrate that the Applicant was 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. 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. At this time, the Applicant has not provided sufficient documentation for the Board to consider. Therefore, no relief will be granted.

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 or any other evidence relating to his discharge 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 18, effective
12 Dec 1997 until 21 Aug 2002, 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 “ 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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