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NAVY | DRB | 2004_Navy | ND04-00366
Original file (ND04-00366.rtf) Auto-classification: Denied


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


ex-SKSR, USN
Docket No. ND04-00366

Applicant’s Request
The application for discharge review was received on 20031218. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. 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 20040910. 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. “I am requesting that my discharge be changed from other than honorable to honorable, please review the enclosed information for this possible discharge status change.

Dear Sirs:

I would like to request a review of my Discharge and consideration be given to changing it from Other Than Honorable to Honorable.

While in the U.S. Navy, I entered boot camp at Great Lakes (Chicago, Illinois) and went through the transition from civilian to military and experienced no problems. Then I was sent to Meridian, Mississippi, for Storekeeper ‘A’ School Technical Training, I did not experience any problems there either. I was then sent to my first duty station, which was the USS Saipan (Norfolk, VA.). While there, I adapted to the environment rather quickly. One evening I went to town with a shipmate, got separated, and ended up being escorted back to the ship by Civilian Police. I then, had another incident while out in town that led to disciplinary action due to my being UA. This was another incident that was now on my record. After the incidents, I was no longer considered for assignment to the S-8 Division and was re-directed to report to the S-1 Division. Things started to go downhill from there on out. Soon after that changes came to the division. These changes were supervisory personnel. The way the division operated changed rapidly with no compromise. For a reasonable amount of time, the so called “motivation tactics”, were no longer agreeable to me. I then spoke to my next chain of command above the direct supervisor, which was new to this Duty Station and I was told to give it time and things would work out. Things did not work out. I spoke with other shipmates that were of rank E-4 or higher and the response that I received was that of, “I am being sent to a new command in a few weeks and don’t want to cause any waves” or, “I am getting ready to retire”. I spoke with the Chaplain of the ship and gained little advice, I requested to speak to the legal department or base legal, I requested to be transferred to a new division, I even requested to be sent to a new Command and none of these avenues gave me any help or hope.

I then decided that I did not have two-and-a-half years of my life to be spent where I felt that I did not belong. I realize now that some of the decisions made by me were made due to my immaturity but do not feel that I should be penalized for the rest of my life, for the mistakes of my youth. My Patriotism and My Country are very dear to me!! Upgrading my discharge to Honorable, would give me the same stature as my Grandfather’s and Father as proud American’s, believing in the American way of life. If it were not for many, many sacrifices, we would not be the great nation that we are today.

I cannot change the past but I can learn and grow from my mistakes.

Since being discharged from the Navy in February 1993, at the age of twenty-three, I have worked what jobs that were available. Beginning in 1995, I was introduced to Non-Destructive testing. I worked for one company from 1995-2002 and was a contractor. Since 2002 to the present time, I have been an employee of a chemical company and I am now thirty four years old. I have also continued my education in this field and hold certifications of the same. I now have a beautiful family (wife and child) that I go to work for each and every day. I have not been in nay trouble since being discharged. The Navy taught me more that I had ever realized at the time and I still use those practices to this very day.

Please consider the information in this letter for a change in my Discharge.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Statement from Applicant, undated
Applicant’s DD Form 214 (Member 1 and 4)
 Thirty-two pages from service record
 Driver record, dated December 2, 2003
 Sheriff of Cabell County record check, dated December 1, 2003
Sheriff of Cabell County record check, dated March 20, 2000
 Certificate for attending the course practical welding technology, dated November 5, 2003
Certificate, dated June 30, 2002
Certificate, dated May 24 through June 4, 2002
Certificate, dated December 31, 2003
Certificate, dated May 29 through June 6, 2000
Certificate, dated October 31, 2002
Certificate, dated September 21 – 25, 1998
Certifications list, dated April 26, 2000
Certifications list, dated August 30, 1996
Letter from Staveley Schools of NDT, dated June 6, 1997
Certificate, dated June 6, 1997

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     910529 - 911001  COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 911002               Date of Discharge: 930205

 Length of Service (years, months, days):
         Active: 01 04 04         (Does not exclude lost time)
         Inactive: None
Age at Entry: 21                          Years Contracted: 4

 Education Level: 12                        AFQT: 54
Highest Rate: SKSA

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 3.20 (1)    Behavior: 2.80 (1)                OTA: 3.12

 Military Decorations: None
Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 27

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 :

920909:  NJP for violation of UCMJ, Article 134: Drunk and disorderly.
         Award: Forfeiture of $150 per month for 1 month, restriction and extra duty for 30 days. No indication of appeal in the record.
920923:  Retention Warning from USS SAIPAN (LHA-2): Advised of deficiency (You are establishing a record of minor disciplinary infractions and a pattern of misconduct), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
921019:  Applicant to unauthorized absence 0715, 921019.

 921021:  Applicant from unauthorized absence 2200, 901021 (2 days/surrendered).
921024:  Applicant to unauthorized absence 1800, 921024.
921026:  Applicant from unauthorized absence 0730, 921026 (1 day/ surrendered).

 921030:  Applicant to unauthorized absence 1430, 921030.
921102:  Applicant from unauthorized absence 0530, 921102 (2 days/surrendered).
921113:  NJP for violation of UCMJ, Article 86 (3 specs): Unauthorized absence for a total of 7 days.
         Award: Forfeiture of $392 per month for 1 month, restriction and extra duty for 30 days. No indication of appeal in the record.
921209:  Applicant to unauthorized absence 0730, 921209.
930101:  Applicant from unauthorized absence 2000, 930101 (22 days/surrendered).
930108:  NJP for violation of UCMJ, Article 86: Leaving appointed place of duty, (2) Unauthorized absence for a total of 23 days, violation of UCMJ, Article 134: Breaking restriction.
         Award: Forfeiture of $407 per month for 1 month, restriction for 60 days, reduction to E-1. No indication of appeal in the record.
930114:  USS SAIPAN (LHA-2) notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by three NJP’s under the UCMJ and by reason of misconduct due to commission of a serious offense as evidenced by NJP held on 920909 and 930108.
930114:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights.
930120:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and commission of a serious offense.
930202:  BUPERS 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 19930205 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: Normally, to permit relief, an impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety or inequity after a review of Applicant’s case. Applicant contends that his youth, immaturity and the command climate caused his misconduct. Notwithstanding Applicant’s claims, the evidence of record does not demonstrate the Applicant was not responsible for his actions or should not be held accountable. Furthermore, 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 nonjudicial punishment proceedings for multiple violations of Article 86 and one violation of Article 134 of the UCMJ. 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.

Outstanding post-service conduct, 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, can be considered. However, 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. In determining whether a case merits a change based on post-service conduct, the NDRB considers the length of time since discharge, the applicant's record of community service, employment, conduct, educational achievements, and family relationships. In reviewing the applicant’s post service, the Board was impressed with the efforts he has made in attempting to recoup his reputation, which has been sullied by his misconduct in the Navy. However, the Applicant has provided insufficient evidence of post-service accomplishments to warrant an upgrade on this basis alone. 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 documentation to support any claims of post-service accomplishments or any other evidence related 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, effective 15 Aug 91 until
04 Mar 93), 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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