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NAVY | DRB | 2004_Navy | ND04-01216
Original file (ND04-01216.rtf) Auto-classification: Denied


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

ex-ATAN, USN
Docket No. ND04-01216

Applicant’s Request
The application for discharge review was received on 20040729. 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, D.C. Metropolitan area. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041222. 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 received 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 - commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

 “Dear Board Members,

My name is S_ B_ (Applicant) and I was discharged from the United States Navy over ten years ago. I am writing this letter in hopes that the nature of my discharge might be reconsidered and to respectfully request that it be upgraded. It is my sincere hope that after reading this letter you not only gain a better understanding of the type of person that I am (and have become), but that you will also see that the nature of my discharge is not an accurate reflection of my service to this great country. I have basically three points that I would like to share with you that I believe are the basis for my argument.

First, I do not believe the nature of my discharge is consistent with the performance and achievements that have defined my life until now. I grew up in a rural farm area of southwestern Michigan over 30 years ago. Back then children still said the pledge of allegiance every morning in school, and you loved God, family, and country in that order. It was no mistake that years later, I would be reunited with three of my grade school classmates while attending military training school in Tennessee. We all had one thing in common: we loved our country and were proud to serve.

Since being discharged in 1993, I have accomplished many things for which I am very proud of. I joined a wonderful church organization which has been a source of great strength and encouragement for me. I have created many great friendships and given myself freely to the service of others in the church as a lay person and a Sunday school teacher. I was able to start a career in telecommunications and flourish in the technology industry until the present. I have never been fired from a position, always received high marks as an employee, and have never had a single incident with the law. I am approaching my 5 th anniversary with my wonderful wife and we celebrate our two boys each and everyday of our lives. I recently received my Associates degree in Computer Programming (Magna Gum Laude, 3.85 GPA) and did so as a full time student and employee at a fortune 5 company. I am continuing to attend college for my degree in Computer Information Systems and consistently rank among the top students in my class. I am surrounded by the fruits of success and hard work that I attribute to both the blessings of God and the personal growth and the lessons I learned while in the Navy. Does this really sound like a person who served his country other than honorably?

Secondly, I believe my service while in the Navy is not consistent with a service member who deserves and Other Than Honorable discharge. From the very beginning, while in boot camp, I was able to distinguish myself as a leader and a trustworthy sailor. While other recruits were serving their work weeks in the galley or cleaning up, I was selected to the Flag Team. This was selection of great honor, tradition and hard work that resulted in our presentation of military flag drills on graduation day. While attending Aviation Electronics Training, I consistently ranked among the top students in my class and successfully completed Advanced Aviation Electronics training. I have received letters recommendation and certificates of outstanding completion of physical readiness tests. I faithfully served for 3 years and nine months and was in line for my first good conduct award until the incident occurred which led to my discharge.

Furthermore, my service record shows no pattern of violence or irresponsibility. After ten months of service I was promoted to Petty Office third class and faithfully executed the duties of that rank for almost three years. I was put in charge of First Lieutenant Division where I filled the billet of a Chief Petty Officer overseeing 22 squadron members. I was reviewed in this position and it was decided that my performance was so outstanding that I would continue to serve in that capacity. Despite the incident which led to my discharge, my commanding officer still felt it necessary to recommend me for an honorable discharge. When I received information that my discharge was O.T.H., both he and my superiors were shocked.

I have always been taught to accept responsibility for my actions and always have, even up to now. Looking back, however, it is clear to me that my actions (even including those that necessitated my discharge) do not warrant the type of discharge I received.

Finally, I sincerely believe that upon review of the circumstances surrounding my discharge, a case can be made that my mistake did not warrant a discharge at all (let alone an O.T.H.). While serving as Petty Officer in charge of First Lieutenants Division, I accompanied several of my shipmates to the Enlisted-men’s Club at the Philadelphia shipyards in Pennsylvania. As is common in the Navy, we all got very drunk that night and most of us were feeling pretty full of ourselves. On the way back to our berthing area, myself and another shipmate, who happened to be assigned to my unit, got in a scuffle. I was drunk and the other sailor received three stitches to his forehead. A captain’s mass ensued, and I was reduced in rank and a recommendation for an honorable discharge was made. That’ is it; one incident in which I was clearly inebriated and got in a fight. Not to say that this is acceptable behavior, but to be quite frank with you, if every sailor was given this treatment, there would be no Navy. I truly regret what happened. I was young, I was stupid, and I accepted my punishment. To say that it will never happen again has been proven. I walked away from that situation not having ever been in a compromising situation like that again. But to suggest discharge at that point in my naval career, even now, seems a little extreme. Clearly a mistake has been made that can easily be corrected.

Today, I still love my country and I am proud that I served my country during Desert Storm. However, it pains me to know that I did not fulfill the expectations that I set for myself and that my discharge is something less than honorable. My church honored it’s veterans a few weeks back and I stood among veterans from 4 wars including a Marine who survived Utah Beach in World War II. I was proud of them and ashamed of me. Never in my life had I ever had reason to hang my head low, but I found it nearly impossible look my peers and my friends in the eye.

Let me share with you a story that I have told my Sunday school students many times. I remember one day waiting in the lobby of the Navy medical facility at NAS Jacksonville. As I was waiting, I noticed an entire wall filled with black and white pictures of sailors. They were Medal of Honor citations for Navy corpsman who served in various battles throughout World War II, Korea, and Vietnam. Having read each one, I was overwhelmed by the courage and bravery that these men displayed on the field of battle. Most of these corpsmen received their medals posthumously and fought tremendous odds, taking no thought for their own safety. Wiping back the tears, I wondered if I could ever be so courageous or if I could have given my life so selflessly for others. I knew I would probably never receive a Medal of Honor, and I might never know the answer to my question of bravery. But one thing I have carried with me all these years since; the thing that chokes me up on Memorial Day, and the thing that shames when I think of my own discharge: I always knew, perhaps it is something I knew even as a child saying the pledge of allegiance, that I wanted to serve my country honorably. Please consider my request and thank you for your time.

Sincerely,

S_ J_ B_ (Applicant)”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Cover letter to the application and supporting documents from Macomb County Veteran’s Services Office, dated July 20, 2004
Letter to the Board of Records Corrections, dated August 30, 2004
Copy of Associate of Business degree, dated June 2004
Copy of Certificate of commendation, dated May 7, 1990
Copy of Certificate of appointment, dated July 20, 1990
Character reference, dated August 12, 2004
Character reference from Senior Pastor Firstchurch Sterling Heights, undated
Letter of recommendation, dated August 14, 2004

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     881209 - 890829  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 890830               Date of Discharge: 930603

 Length of Service (years, months, days):

         Active: 03 09 04
         Inactive: None

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

 Education Level: 12                        AFQT: 86/85

 Highest Rate: AT3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.70 (2)    Behavior: 3.60 (2)                OTA: 3.70

 Military Decorations: None

 Unit/Campaign/Service Awards: CoC

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

920609:  Applicant admitted to Naval Hospital, Rota, Spain.

920615:  Applicant transferred to Eisenhower AMC, Ft Gordon, GA

 920624:  Psychiatric evaluation: Applicant evaluated for a recent suicide gesture (Motrin overdose) following reassignment to a new duty station. He [Applicant] felt that this reassignment was beneath his abilities and that the Navy was no longer aiding him in his career plans. Given his present duty assignment, he does not want to remain in the Navy and similar behavior can be expected if returned to his former duty assignment. If returned to his former duty assignment however, it is felt that he could/should perform satisfactorily as a member of the military. If this assignment is not possible, it is recommended that he be expeditiously administratively separated from the Navy.
Diagnoses: AXIS I: Adjustment disorder with mixed emotional features. AXIS II: Narcissistic personality traits.
Findings: This individual meets the retention standards prescribed in Chapter 3, AR- 501 and there is no psychiatric disease/defect which warrants disposition through medical channels. This individual was and is mentally sound and able to appreciate any wrongfulness in his conduct. He has the mental capacity to understand and participate in board or other administrative proceedings. Return to duty will probably lead to a repetition of such responses as were noted prior to hospitalization.
Recommendation: It is strongly recommended the PO3 B_ be administratively separated as expeditiously as possible.
921013:  Medical recommendation ICO AT3 S_ J. B_.
 SNM [Applicant] was admitted to the CV-60 medical ward following ingestions of overdose of Motrin in an apparent suicidal gesture. He admitted to the same only after experiencing stomach upset. When questioned he reported that he was upset about being TAD to mess decks and wanted to get out of the Navy. He was referred to Naval Hospital Rota, Spain, and from there to Eisenhower Army Medical Center, Fort Gordon, GA. At both facilities it was felt the he has narcissistic personality traits. These were evidenced by a very self-centered style of coping, ultimately manifested by a suicidal gesture in response to the command not meeting his perceived needs. It was determined that his suicidal attempt did not occur in the line of duty, that it was due to his own misconduct, and that separation from the Navy via administrative separation “as expeditiously as possible” would be in the best interests of both Applicant and the Navy. SNM has stated that he desires to get out of the Navy, and that if placed in the same circumstances, he would be likely to make another attempt on his life. While I doubt he truly desires to die, this poses a severe threat to himself, and potentially others. For this reason, and because his rating requires that he hold a security clearance, I concur that he should be separated via administrative or disciplinary proceedings at the earliest possible convenience.


930112:  Retention Warning: Advised of deficiency (As evidenced by psychiatric evaluation record dated 920624, you have been diagnosed as having a personality disorder which resulted in the commission of a suicide gesture by you. It has been determined that your actions did not occur in the line of duty and that your absence from the command (i.e. four months absence for medical evaluation), was the result of your own misconduct. Further evaluation indicates that return to your current duty assignment will probably lead to the repetition of such actions as noted above, on your part.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
930414:  NJP for violation of UCMJ, Article 128 (2 specs): (1) Unlawfully strike a shipmate on the head with a rock on 930303, (2) Unlawfully strike a shipmate on the head with his fist on 930303.
         Award: Restriction for 20 days, reduction to E-3. No indication of appeal in the record.
930424:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of convenience of the government due to personality disorder as diagnosed at Naval Hospital ROTA, Spain, and Eisenhower Army Medical Center, Fort Gordon, Georgia and misconduct due to the commission of a serious offense as evidenced by his wrongful assault on a shipmate.
930427:  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.
930504:  Commanding Officer recommended honorable discharge by reason of convenience of the government due to personality disorder and misconduct due to the commission of a serious offense. Commanding Officer’s comments: (verbatim): The result of ATAN B_’s (Applicant’s) psychiatric evaluation was a diagnosis that detailed a personality disorder making him incompatible with future Naval Service. After receiving extensive counseling, his personality disorder then manifested itself in assaults on two shipmates. When placed under the stress and demands of military life, ATAN B_ (Applicant) acts in an unpredictable manner.
 Immediate separation would be in the best interest of the Navy. I recommend that his separation be of the type warranted by service record and that he receive an honorable discharge.
930526:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19930603 under other than honorable conditions for misconduct due to commission of a serious offense (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).

 The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. 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 the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. 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, is considered. The applicant provided three letters of character reference as documentation of his post-service. The applicant's efforts need to be more encompassing than those provided. For example, the applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities, in order for consideration for clemency based on post-service conduct. At this time, the applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge. Therefore, relief is not warranted.

The Applicant contends that he served the United States well and he is 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 a nonjudicial punishment proceeding for violations of Articles 128 of the UCMJ. Also, the Applicant attempted suicide and was diagnosed with a personality disorder making him incompatible with naval service. 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.





A "serious offense" is defined by the MILPERSMAN as an offense under the UCMJ for which the Manual for Court-martial authorizes a punitive discharge. The Applicant violated Article 128 of the UCMJ (2 specifications) by unlawfully striking a shipmate on the head with a rock and with his fist. A person in the military must abide by the standards as set forth in military regulations and laws, regardless of what guidelines his civilian counterparts might utilize. While the board regrets that the applicant must live with the stigma associated with the term "serious offense," it cannot justify changing the reason for discharge unless it is inappropriate in describing the circumstances surrounding the applicant's 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), Change 5, effective
05 Mar 93 until 21 Jul 94, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

 B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .

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 “ http://Boards.law.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:

                  Secretary of the Navy Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023

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