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NAVY | DRB | 2004_Navy | ND04-00543
Original file (ND04-00543.rtf) Auto-classification: Denied


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

ex-FCSA, USN
Docket No. ND04-00543

Applicant’s Request
The application for discharge review was received on 20040211. 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 20040922. 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 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated:

 1. “My first mast case was U/A. The problem is that we were on west pac and I was on the ship, cranking (mess duties). One night after my out duties at 0400 a shipmate that was on watch in combat came and woke me up. He told me that our weapons officer needed me to fix my system the (Tack-n) computer and since I was the only tech on board I was ordered to do the repairs. I called down to the mess deck master at arm to inform her I was doing the repairs on the (Tack-n) computer per orders given to me by the weapons officer. I further stated upon the repairs completion I would come directly to the mess hall. As stated when I finished the repairs I went to my duties in the mess hail. My mess deck master had written me up for not being there earlier. When I reminded her that I had called her and told her where I was and what I was doing, she told me that she did not remember. The mess deck supervisor would not call him to verify and told me to have him call her. When I went back to the weapons officer, for him to verify where I was and I that was involved in the repairs he had requested he said “No,” he was busy. Neither contacted the other and this resulted in me being wrongly accused of being U/A.
I went to mast for the second time for standing an improper watch. I was standing on the 2000-0000 external rover watch. During this watch the chief of data systems who was my contact to my next ship the USS Elliot (DD-967) after the USS Hewitt had become decommissioned. He told me that I needed to empty my ships e-mail so he could send me some info on the Elliot. About 20 minutes before my watch was over I went to the restroom. Before I exited the ship I did as requested and deleted my old emails. As I was leaving my work center supervisor appeared to be inebriated walked in and put me on report. I tried to explain that I had been requested to delete my old e-mail by the ship’s data systems chief. I realize I should have waited the twenty minutes before accomplishing the deletions now in hindsight but being young and impulsive I siege the moment.
I went to mast the third time for falling asleep on the watch, due to exhaustion. I had worked a normal day (0800-1800), was on flight quarters for my division which could be called any time on the day or night and my division work center supervisor (FC2 A_) thought it would be a good idea to put me on the rev watch (0400-0800) every night. Basically I was getting three hours of sleep a night for three to four weeks. When I approached my work center supervisor and informed him of the problem I was having staying awake on watch and requested a change in my watch schedule to a day watch he ignored me. Even other individuals who had stood the watch with me, i.e. the chief of my division informed my work center supervisor of my apparent problem of staying awake. I was on watch one night and my body shut down. After I was put on report my work center supervisor took over flight quarters and the rev watch. Within 3-days he realized that he was having the same problem as I had and changed the watch schedule so that he had a day watch and could get more sleep. When I bought it to the chiefs attention that it was wrong that FC2 A_ had changed his watch because he had the power too and when I asked him to do it for me, which would have helped me get rest and stay up during watch. My chief acted like he did not care.
My last mast, they say I was an operation security (OPSEC) issue. My boat was getting ready for the Tiger Cruise (the cruise between Hawaii and San Diego.) I had invited my thirteen-year-old sister to be a guest, due to my sister being a minor my father and I conversed via e-mail. To cut down on cost my dad asked me when we were suppose pull in so he could meet us in San Diego. I had made plans to take leave upon arrival into San Diego so that I could return back to Texas with my father and sister. I gave him an approximate day of arrival. Due to me doing this I was accused of committing an OPSEC violation and stripped of my security clearance. I was sent to work with the deck division, but was still apart of the Combat Systems Missile Division (CSM). Although I had lost my security clearance I was required to continue working on my system which required a secret security clearance, further the area in which my system was located required a top secret clearance for entry. Within a week after I had inform my dad via e-mail, he received e-mail from an officer stating the actual date of the ships arrival.
When I went to mast the captain stated because I told my dad the tentative date, I had compromised OPSEC. I informed him that I did not purposely compromise OPSEC. He asked me what type of punishment I felt I deserved. I informed him that I did not feel I should be punished because others of my shipmates had emailed their family members also relaying like information to them.
Although I was guilty of standing and improper watch on the USS Hewitt, the other infractions I do not believe I should be or have been punished for. I was doing my job as an FC3 and fixed a unit for an officer in my chain of command and was prosecuted for being UA because neither the officer nor the NCO chose to communicate with one another. The mast case where I feel asleep, I was guilty of falling asleep but only after I had informed my work center supervisor that I was not receiving adequate rest/sleep between watch’s and normal shift work. My body continued to feel the effects of the fatigue and eventually sleep won out. Throughout all of my mast cases I was not informed I could get legal representation until it was too late. I am only asking to have my case reviewed in an effort to be treated fairly and my discharge changed to read honorable.”

Issue 2. “My name is R_ D_ T_ ( Applicant ) I was discharged from the navy on July twenty-fifth, 2002. Since my dismissal from the navy I returned to Texas and I have continued to try to better myself by applying my training I received in the navy to the civilian world. I have applied for an electronics journeyman’s school and I am on their two-year waiting list to enter. I still want to serve my country and have stayed close to the military. I am currently employed with Military Sales and Services, and I am recently applying to become a State Trooper. I would like to have stayed in the military and would not mind reentering the military. The general (under honorable conditions) discharge I received may be the only thing that is holding me from achieving my goals of going to school and becoming a state trooper or becoming an electrician. So I ask for your review of nm service records and your indulgence. I was a good seaman and feel I was treated unfairly for my infractions. Please consider upgrading my discharge.”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Ltr from MSS dtd 040123

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     980317 - 980823  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 980824               Date of Discharge: 020725

 Length of Service (years, months, days):

         Active: 03 11 02
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4 (24 months extension)

 Education Level: 12                        AFQT: 80

 Highest Rate: FC3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.66 (3)    Behavior: 2.33 (3)                OTA: 2.66

 Military Decorations: None

 Unit/Campaign/Service Awards: AFEM, SSDR (2), NDSM

 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 1910-140 (formerly 3630600).

 Chronological Listing of Significant Service Events :

001127:  NJP for violation of UCMJ, Article 86: unauthorized absence.
         Award: Restriction and extra duty for 15 days, reduction to FCSN susp for 6 mos. No indication of appeal in the record.

001127:  Retention Warning: Advised of deficiency (VUCMJ, ART 86), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

010216:  NJP for violation of UCMJ, Article 86: unauthorized absence, abandoning watch station, violation of UCMJ, Article 92, failure to obey order or regulation, Article 113: misbehavior of sentinel or lookout.
         Award: Forfeiture of half pay per month for 2 month(s), restriction and extra duty for 45 days, reduction to FCSA. No indication of appeal in the record.

011126:  NJP for violation of UCMJ, Article 92: dereliction in performance of duties.
         Award: Forfeiture of $584 per month for 2 month(s), restriction and extra duty for 45 days, reduction to FCSA. No indication of appeal in the record.

011214:  Retention Warning: Advised of deficiency (dereliction of duty by sleeping on watch.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

020413:  NJP for violation of UCMJ, Article 90: disobeying a superior commissioned officer.
         Award: Forfeiture of half pay per month for 2 month(s), restriction and extra duty for 35 days, reduction to FCSA. No indication of appeal in the record.
020421:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
020424:  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

020701:  CO USS ELLIOT directed the Applicant's GENERAL (UNDER HONORABLE CONDITIONS) discharge due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was awarded a general (under honorable conditions) discharge on 20020725 (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. 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. A General 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 four nonjudicial punishment proceedings for six violations of Articles 86, 90, 92 and 113 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.

The Applicant was subject of four nonjudicial punishment proceedings for violations of the UCMJ. The statements and submissions of the Applicant were not sufficient to persuade the Board that the Applicant’s NJP’s or subsequent separation were inequitable or improper. Other than the statements of the Applicant, there is no indication in that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

Issue 2. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety 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. As of this time, the Applicant has not provided sufficient documentation for the Board to consider. 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. 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. 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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