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NAVY | DRB | 2004_Navy | ND04-00658

Original file (ND04-00658.rtf) Auto-classification: Denied

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

ex-AN, USN
Docket No. ND04-00658

Applicant’s Request

The application for discharge review was received on 20040312. 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 20040921. 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. “FIRST OF ALL I WOULD LIKE TO THANK THE MEMBERS OF THE BOARD FOR HEARING MY CASE. THE ISSUES I WILL PUT BEFORE YOU ARE TRUE TO THE BEST OF MY KNOWLEDGE. I MUST SAY THIS SOME NAMES I MAY HAVE FORGOTTEN. BUT THE SCARES ARE STILL FRESH IN MY MIND. IF SOMEONE WOULD HAVE TOLD ME THAT THE NAVY IS GOING TO HAVE SOMEONE IN YOUR FACE FOR THREE YEARS OF YOUR LIFE PUTTING YOU DOWN I DO NOT THINK I WOULD HAVE JOINED. SOME OF MY ISSUES MAY SHOCK YOU AND SOME MAY NOT. SOME OF MY ISSUES MAY NOT EVEN MOVE YOU, BUT PUT YOUR SELF IN MY SHOES. THE FIRST ISSUE I WOULD LIKE TO ADRESS IS THE FACT THAT I WAS ACCUSEDOF WANTING TO BLOW UP THE SHIP. IT WAS NINE AM WHEN I GOT CALLED TO GO TO THE BERTHING; FIRST CLASS T_ HAD STRIPPED MY RACK. HE THREW MY FUR COAT THAT HAD A VALUE OF $1700 AND HAT IN THE TRASH. I HAD IT ON MY RACK NO ONE KNEW IT WAS THERE. I WAS VERY UPSET. AS I RETURND BACK TO THE WHOLE (AN) P_ WAS SAYING THINGS TO ME THAT I DID NOT WANT TO HEAR. (AN) P_ SAID TO ME THAT I WOULD DO ANYTHING TO GET OUT THE NAVY WOULDN’T YOU. I REPLIED YES. AS WE WENT BACK AND FORTH, PETTY OFFICER W_ GOT IN MY FACE AND SAID YOU ARE NOT CUT TO BE IN MY NAVY YOU ARE ONE OF THEM GOOD OLD UP NORTH NIGGAS. AT THE TIME I LAUGHED IT OFF BECAUSE I THOUGHT HE WAS CRAZY. I TOLD HIM I WAS GOING TO REPORT HIM, HE TURNED TO ME AND SAID IF YOU REORT ME I WILL KICK YOUR ASS. THEN HE SAID I WOULD FIX IT WHERE YOU WILL BE OUT OF MY NAVY. HE LEFT AND CAME BACK A SHORT TIME LATER. THIS IS WHEN I GOT CALLED TO THE G-3 OFFIFCE. THE FIRST CLASS AND THE CHIEF ASKED WHAT AM I TRYING TO DO ANOTHER IOWA? SO THEY ASKED WHAT HAPPENED AND I TOLD THEM. THEY CALLED (AN) P_ TO THE OFFICE AND ASKED HIM ABOUT WHAT I SAID AND HE TOLD THEM THAT I DID NOT SAY THAT I WANTED TO BLOW UP THE SHIP. WHEN I WALKED OUT TO RETURN TO THE WHOLE, THEY CALLED P_ BACK TO THE OFFICE AND HE CHANGED HIS STORY. THIS IS WHEN THEY SENT ME DOWN TO MEDICAL TO GO SEE THE DOC. THE DOC SAID THAT HE WAS GOING TO RUN SOME TEST TO SEE IF I WAS ABLE TO DO MY JOB. I TOLD THE DOC THAT I’M NOT CRAZY AND PETTY OFFICER W_ MUST HAVE MADE ALL THIS STUFF UP. A FEW MONTHS HAD GONE BY AND I TOLD FIRST CLASS T_ THAT I DID NOT WANT TO WORK WITH PETTY OFFICER W_. HE SAID WELL I WILL SHOW YOU JUST HOW GOOD YOU HAVE HERE. SO HE SENT ME DOWN TO SUPPLY, WHEN I ARRIVED THE FIRST CLASS SHOWED ME AROUND THE FACILITY. HE GAVE ME A JOB; I HAD TO CLEAN UP A WATER SPILL THAT WAS A CONTINUING LEAK. AS I WENT TO CLEAN IT AGAIN I NOTICED THAT IT WAS A SMALL CUT IN THE TUBE GOING TO THE WASHING MACHINE. SO I GOT SOME ELECTRICAL TAPE AND FIXED IT FOR THE MOMENT. AS I KNOCKED ON THE FIRST CLASS DOOR I OVERHEARD HIS PHONE CONVERSATION, HE WAS TAKING TO MY FIRST CLASS AND I HEARD HIM SAY TEACH HIM A LESSON. WHEN HE GOT OFF THE PHONE HE WAS CUSSING ME OUT AND YELLING AT ME AND TOLD ME TO GET MY MAGET ASS BACK IN THERE AND GET BACK TO WORK. SO I DIDN’T LIKE WHAT HE WAS SAYING TO ME, SO I FINISHED THE JOB AND WENT BACK TO MY DIVISION. I DID NOT FEEL THAT I NEEDED TO BE MADE FUN OF. THESE TYPES OF METHODS WENT ON FOR SEVERAL MONTHS. I STAYED IN THE G-3 DIVISION ALMOST TWO YEARS AND EVERONE ON THE SHIP CONSIDERD ME A TROUBLE MAKER. AS WE SET SAIL AND WENT TO SEVERAL PORTS OVER THE YEARS I GOT THE RAW END OF THE STICK. I WOULD GET THE PAINT JOBS NO ONE ELSE WANTED. I WOULD PAINT THE GLOW IN THE DARK STENCILS AND IT WOULD AFFECT MY BREATHING. AS I COMPLAINED ABOUT CHEST PAINS CHIEF C_ TOLD ME THAT IF I DID NOT FINISH THE JOB HE WOULD PERSONALY SEE TO IT THAT I NEVER HAVE ANY PLEASANT MOMENTS IN HIS NAVY. I EVEN WENT TO THE FIRST CLASS IN OUR DIVISION AND HE JUST LAUGHED AT ME AND SAID YOU ARE JUST TRYING TO GET OUT OF WORK. AT THIS TIME IN MY MILITARY CAREER I DID NOT FEEL THAT I BELONGED IN THE NAVY SO I WANTED TO GET OUT. AS I RETURNED BACK TO THE WORK DETAIL THERE WAS ANOTHER SALIOR WHO ALSO GOT SICK FROM THE PAINT WE WERE INHALING. WHEN HE WALKED OFF AND WENT TO COMPLAIN HE NEVER CAME BACK AND I WAS LEFT TO DO THE ASSIGNMENT BY MY SELF. WHEN I ASKED WHY WAS I LEFT OUT TO DO THE WORK THE FIRST CLASS REPLIED TO ME A CLOSED MOUTH IN THE NAVY WILL GET HEARD INSTEAD OF SOMEONES MOUTH LIKE YOURS ALWAYS TURNING AND COMPLANING LIKE AN UP NORTH NIGGA. THAT COMMENT HAS STAYED IN MY HEAD FOR SEVERAL YEARS. I DID NOT ENLIST IN THE MILITARY THINKING THAT I WOULD BE A TARGET. SO I LEFT THAT AFTERNOON AND TOOK SOME LIESURE TIME TO MY SELF TO GO DO SOME LAUNDRY, IT WAS ABOUT 4:30PM AND WHEN I RETURNED ABOUT 7:00 I HAD BEEN WRITTEN UP FOR BEING UA. I WAS SENT TO MY FIRST CAPTIONS MASS AND NEVER REALY UNDERSTOOD WHAT WAS GOING ON. I WAS SENTENCED TO 3 DAYS BREAD AND WATER I GAINED 3 POUNDS IN 3 DAYS. I COULD NOT BELIVE I WAS ACTUALLY IN A JAIL CELL. I HAD NEVER BEEN IN JAIL BEFORE IN MY LIFE. NOW JUST THINK IM ALMOST 21 YEARS OF AGE AND THIS WAS THE FIRST TIME I HAD BEEN PUT IN JAIL IN MY LIFE. I ATTENDED COLLEGE IN OKLOHOMA ON A BASKETBALL SCHOLORSHIP BUT I HURT MY LEG. I WENT TO COLLEGE SO I WOULDN’T GET CAUGHT UP IN THE STREETS OF DAYTON OHIO SO I CAN BETTER MY SELF AND THIS HAPPENS. EITHER MY MORAL OR MY SELFESTEAM WAS EVER RAH! RAH! SO HOW WOULD YOU FEEL ALWAS BEING TOLD YOU ARE NEVER GOING TO AMOUNT TO ANYTHING? SO TO GET MY SPIRITS HIGHER I FORMED THE TR CHIOR AND WE SANG FOR DIFRENT EVENTS ON OUR SHIP. I HAD SUNG FOR THE KING AND QUEEN OF TRINADAD AT THE USO. I THOUGHT THINGS WERE REALLY GOOD BUT I WAS WRONG. AFTER WE RETURNED FROM TRINIDAD THE CHIEF WAS STILL BUGGING ME. I WAS PLACED ON TRASH DUTY AS A PUNISHMENT INSTEAD OF A JOB. THERE WAS ANOTHER SHIPMATE WHO WAS ALSO PLACED ON TRASH DUTY BUT HE NEVER SHOWED UP. WHEN I REPORTED IT TO CHIEF C_ HE SAID AND I QUOTE (DON’T WORRY ABOUT ANYONE ELSE BECAUSE IM JUST GETTING YOU READY FOR YOUR DAY JOB FOR YOUR FUTURE, BECAUSE YOU AINT NEVER GONA BE NOTHING ANYWAY) SO AS I RETURNED TO THE DETAIL AND F1NISHED THE TRASH. I THEN RETURNED TO MY RACK AND STARTED THINKING ABOUT WHAT WAS SAID TO ME. THE SHIPMATE WAS A WHITE SHIPMATE AND WHEN I CAUGHT UP WITH HIM HE SAID HE DIDN’T HAVE TO DO NOTHING BECAUSE HE’S NOT IN THE FIELD. I ASKED HIM WHAT DOES THAT MEAN AND HE SAID HE DID NOT HAVE TO DO ANY PLANTATION WORK. I JUST LOOKED AT HIM AND SAID (MAN YOU ARE SO STUPID YOU CAN’T EVEN SEE IT). I WAS SO ANGRY THAT THE CHIEF MADE ME FINISH THE ENTIRE TRASH DETAIL BY MYSELF. WHEN I GOT FINISH I GOT DRESSED AND WENT ON LIBERTY. AS I RETURNED THE NEXT MORNING AT QUARTERS THE FIRST CLASS T_ TOLD ME TO STAY AFTER AND GAVE ME THE PAPERS THAT I HADE BEEN WRITTEN UP AGAIN AND I WAS GOING TO CAPTINS MASS AGAIN. I RECEIVED 17 DAYS RESTRICTION. I ALSO WAS NEVER RECOMMENDED FOR ADVANCEMENT. AT THIS POINT I DID NOT REALLY BELIVE IN THE NAVY ANY MORE ABOUT BE ALL YOU CAN BE. MY ENTIRE TIME IN THE NAVY WAS FILLED WITH DECETMENT AND LIES. I NEVER FELT MORE HUMILIATED IN MY LIFE NOR HAVE I EVER EXPIRENCED ANY RACIAL ADVERSITY UNTIL I FACED THE G-3 DIVISON. AFTER MY SECOND CAPT MASS I WAS TRANSFERRED TO THE G-4 DIVISON. SINCE I WAS LABELED A TROUBLEMAKER THE G-4 DIVISION PUT ME IN THE G-6 DIVISION WHICH IS THE DC DIVISION. THIS TOOK PLACE IN MAY OF 1992. I HAVE DOCUMENTATION OF SOME OF THE DAY-BY-DAY THINGS I DID. EVEN THOUGH SOME PEOPLE SAID THAT I NEVER DID ANY THING AND I WAS VERY LAZY. IF I WAS SO NOT NAVY I WOULD HAVE NEVER TESTIFIED FOR THE NIS COURT AS A KEY WITNESS IN A SHOOTING THAT TOOK PLACE OUTSIDE A RESTURANT. I STILL CONSIDER MY SELF-A GOOD SOILDER AND IF I HAD THE CHANCE TO DO IT ALL OVER AGAIN I WOULD IN A HEARTBEAT. MY LAST AND FINAL INCIDENT CAME IN JUNE OF 1992. AS I RETURNED OFF OF LEAVE (JUNE-26 TO JULY-6) I THOUGHT IT WAS CHANGE OF COMMAND. I REMEMBER AT QUARTERS THAT IF YOU'RE NOT IN DUTY SECTION YOU DON’T HAVE TO WORK. WHEN I WENT TO THE SHOP NO ONE WAS THERE. I THOUGHT THAT EVERONE WAS GONE HOME FOR THE DAY. I CAME BACK TO THE BOAT AT 11:00 PM, THAT’S WHEN I RAN INTO (AN) W_ AND HE TOLD ME THAT I HAD BEEN WRITTEN UP. NO ONE EVER TOLD MY THAT I HAD DUTY AND I GOT WRITTEN UP ANYWAY. DURING MY STAY IN THE NAVY I LOST MY YOUNGER BROTHER BY HOMICIDE AND MY OLDER BROTHER TO THE CORECTIONAL INSTITUTIONS I AM NO DIFFERENT FROM ANY OTHER SAILOR. I JUST WANT THE BOARD TO KNOW THAT THEY MADE ME FOREFIT MY BENEFITS AND I NEVER KNEW IT. IM NOT ASKING YOU TO GIVE ME SOMETHING, IM ASKING YOU TO GIVE ME BACK WHAT I HAVE EARNED. IN ORDER FOR ME TO GO ON WITH MY LIFE AND MY FAMILY I AM RESPECTFULLY ASKING THAT MY OTHER THAN HONORABLE DISCHARGE BE TURNED INTO AN HONORABLE DISCHARGE. SO I CAN RECIVE MY BENEFITS THAT I EARNED FOR FIGHTING FOR MY COUNTRY IN THE FIRST GULF WAR. THANK YOU FOR YOUR TIME.”

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s log of events (3 pages)

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

         Inactive: USNR (DEP)     890613 - 890910 COG
         Active: None

Period of Service Under Review :

Date of Enlistment: 890911               Date of Discharge: 921209

Length of Service (years, months, days):

         Active: 03 02 27
         Inactive: None

Age at Entry: 20                          Years Contracted: 4

Education Level: 12                        AFQT: 41

Highest Rate: AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: 1.90 (4)    Behavior: 1.65 (4)                OTA: 1.65

Military Decorations: None

Unit/Campaign/Service Awards: BATTLE ‘E’, NDSM, JMUC, NUC, SASM (2 BRONZE STARS), SSDR, KLM

Days of Unauthorized Absence: 4

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 :

890914: Retention Warning from Recruit Training Command: Advised of deficiency (Non-swim Qualification), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
900205: Administrative Remarks: On unauthorized absence from 0700, 02 FEB 90. Surrendered on board USS THEORDORE ROOSEVELT (CVN-71) at 0730, 02 FEB 90. On unauthorized absence for a period of about 30 minutes.

900222: Administrative Remarks: On unauthorized absence from 0700, 20 FEB 90. Surrendered on board USS THEORDORE ROOSEVELT (CVN-71) at 0730, 20 FEB 90. On unauthorized absence for a period of about 30 minutes.

900321: NJP for violation of UCMJ, Article 86: UA from unit on or about 1600, 21 FEB 90 until on or about 2100, 21 FEB 90.          Award: 3 days bread and water.

900321: Retention Warning from USS THEODORE ROOSEVELT (CVN-71): Advised of deficiency (Unauthorized absence from unit), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

900429: Administrative Remarks: Unauthorized absence from 0545, 23 APR 90. Surrendered on board USS THEORDORE ROOSEVELT (CVN-71) at 1745, 23 APR 90. On unauthorized absence for a period of about 12 hours.

911224: Administrative Remarks: UA from USS THEORDORE ROOSEVELT (CVN-71) at Portsmouth, VA, at 0545.

911226   Administrative Remarks: Surrendered onboard USS THEORDORE ROOSEVELT (CVN-71) at Portsmouth, VA, at 0700.

920116: NJP for violation of UCMJ, Article 86: UA from unit on or about {1} 0530 to 0830, 91DEC12 {2} 0600 to 1245, 91DEC14 {3} 0600 to 0730, 91DEC15 {4} 0530 to 0740, 91DEC17.          Award: Forfeiture of $150 per month for 1 month, restriction and extra duty for 15 days. No indication of appeal in the record.

920116: Retention Warning from USS THEODORE ROOSEVELT (CVN-71): Advised of deficiency (Unauthorized absence from unit), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920804: NJP for violation of UCMJ, Article 86: Absence from unit, SMN on or about 0700, 06JUL92 to 0700, 07JUL92 absent himself from unit. Award: Forfeiture of $150 per month for 1 month, restriction and extra duty for 15 days, reduction to E-2. No indication of appeal in the record.

921027: USS THEODORE ROOSEVELT (CVN-71) notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

921027: 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.

921115: Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

921125: 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 19921209 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: 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 violation of Article 86 of the UCMJ and adverse counseling entries on other occasions. 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 an honorable characterization of service. Relief denied.

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.

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. The Applicant’s evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his discharge.

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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NAVY | DRB | 2004_Navy | ND04-00658

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