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NAVY | DRB | 2005_Navy | ND0500521
Original file (ND0500521.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND05-00521

Applicant’s Request
The application for discharge review was received on 20050208. 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 20050602. 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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “I have been a good citizen since my discharge. My ability to serve was impaired by my youth and immaturity. Since my discharge I have been improving my way of life & character, and set a good example, daily for my children.”

2. "* Prior to May 16, 1994; my average evaluation rating was an 3.4.
         * The very first day I arrived to my command. I was searched, as well as all of my belongings. I understand why this was done. And I agree with that.
         * I was, for the 1st 30 days on board my command. Told to live in the medical living area. I was not assigned to medical, nor did I have any medical issues that needed to be dealt with. I was told that there was not room for me. Nor was aided with my check in.
         * After I was given a rack in the Deck Department living area. My living hell began. The loving area was barely clean. And on most days, my fellow sailors were drunk.
         The following is a list of what was done to my by my fellow deck seaman:
         @ I was spat on.
         @ I was urinated on.
         @ I had everything I owned stolen and thrown overboard.
         @ I had bottles of urine, beer and other liquids thrown on my while I slept.
         @ I even had on 3rd. Class Petty Officer, while he was in a drunken state. Crawl into my rack with me and then began to "dry hump" me.
         @ I was assaulted on almost a daily basis.
         On one night, after taps. I reported all that had been done to me to the Ship Board Master-At Arms. I was told to return to my rack. Nothing was ever done by anyone to help me.
         On March 29, 1994. I was punched in the face and slammed face first into a wall. My broken nose and other injuries were photographed by the attending medical personal. On May 11, 1994, I was punished for this incident with 25 days restriction. I at that point gave up on the military. I became angry at the system, and ashamed to serve. I could not be apart of something that was so unfair.
         I now know that regardless of how I was treated. There was help. I at that time did not know or understand the system. I now realize that I could have hired an attorney to investigate and defend me. I could have gone to my commanding officer. But, please understand at that time I had a feeling of hopelessness.
         After my discharge. I learned that what was done to me by my fellow sailors was not the norm. I learned that this was merely one department on board this ship.
         I know that what I have just told you. Does not excuse my pattern of behavior prior to discharge. I merely wanted you to understand why.

          I have since grown to be a person of respect, in a profession that I truly love. As well as a Notary Public in the state of [state omitted]."

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
List of Employers
List of Work Ethics, Career Goals, and Professional Organizations
Employment Reference Letter from J_ J. R_ dated October 29, 2004
Character Reference Letter from C_ L. A_ dated November 1, 2004
Official Transcript, Education Direct dated July 15, 2004 (3 pages)
Certificate of Achievement from Emergency Management Institute for completion of
Dept of Homeland Security course IS-275, Role of the Emergency Operations Center
in Community Preparedness, Response & Recovery dated November 12, 2004
Certificate of Achievement from Emergency Management Institute for completion of
Dept of Homeland Security course IS-120, An Orientation to Community Disaster
Exercises) dated November 22, 2004
Certificate of Achievement from Emergency Management Institute for completion of
Dept of Homeland Security course IS-600, Special Consideration for FEMA PA
Projects dated December 1, 2004
Notary Public Commission Certificate (2 copies)
Letter from Applicant dated March 23, 2005


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     930106 - 930106  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 930107               Date of Discharge: 950814

 Length of Service (years, months, days):

         Active: 02 04 00 (Does exclude lost time)
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 51

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.70 (2)             Behavior: 3.30 (2)                OTA: 3.60

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 68

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

940506:  Retention Warning from USS JOHN F. KENNEDY (CV 67): Advised of deficiency (misconduct for violation of the UCMJ, Article 128: At building 1031, Naval Station, Philadelphia, Pennsylvania, on or about 940329, assault an E-3, USN, by pushing him and grabbing his throat). Notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

940511:  NJP for violation of UCMJ, Article 128: Did on or about 940329, assault an E-3, USN, by pushing him and grabbing his throat. Award: Restriction and extra duty for 25 days, reduction in rate (suspended for 4 months). No indication of appeal in the record.

940729:  Applicant to unauthorized absence status from USS JOHN F. KENNEDY
 (CV 67).
940804:  Applicant from unauthorized absence; surrendered aboard USS JOHN F. KENNEDY (CV 67) (6 days).

940811:  Applicant to unauthorized absence status from USS JOHN F. KENNEDY (CV 67). Failed to return from liberty.

940816:  Applicant from unauthorized absence; surrendered aboard USS JOHN F. KENNEDY (CV 67) (5 days).

940826:  Applicant to unauthorized absence status from USS JOHN F. KENNEDY
 (CV 67).
940901:  Applicant from unauthorized absence; surrendered aboard USS JOHN F. KENNEDY (CV 67) (6 days).

940914:  NJP for violation of UCMJ, Article 86: UA from unit 940729 until 940804 (6 days). Award: Forfeiture of $466.00 pay per month for 1 month, restriction and extra duty for 14 days, reduction to E-2. No indication of appeal in the record.

941012:  NJP for violation of UCMJ, Article 86: UA from unit 940826 until 940901 (6 days). Award: Forfeiture of 1/2 pay per month for 1 month (suspended for 4 months), restriction and extra duty for 21 days, reduction to E-1. No indication of appeal in the record.

941214:  Applicant to unauthorized absence status from USS JOHN F. KENNEDY
 (CV 67).
950111:  Applicant from unauthorized absence; surrendered aboard USS JOHN F. KENNEDY (CV 67) (27 days).

950119:  Applicant to unauthorized absence status from USS JOHN F. KENNEDY
 (CV 67).
950206:  Applicant from unauthorized absence; surrendered aboard USS JOHN F. KENNEDY (CV 67) (17 days).

950307:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86 (15 Specs), Spec 1: On or about 941214, without authority, absent himself from his unit, to wit: USS JOHN KENNEDY and did remain absent until on or about 950111 (27days/R); Spec 2: On or about 950119, without authority, absent himself from his unit, to wit: USS JOHN KENNEDY and did remain absent until on or about 950206 (18 days/R); Spec 3 through 15, on or about 950202, 12, 15, 17, 18 (0600 and 2100), 20, 22, 24, 25, 26, 28 and 950301, fail to go at the time prescribed to his appointed place of duty, to wit: Restricted/ Extra Duty Muster.
         Sentence: Forfeiture of $400.00, confinement for 10 days.
         CA action 950531: Sentence approved and ordered executed.

950307:  Applicant to confinement.

950315:  Applicant released from confinement and given 1 day credit for good behavior.

950320:  USS JOHN F. KENNEDY (CV 67) notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, and commission of a serious offense, as evidenced by summary court-martial during the Applicant's current enlistment.
950321:  Applicant advised of rights and having elected 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.
950411:  Applicant to unauthorized absence status from USS JOHN F. KENNEDY
 (CV 67).
950417:  Applicant from unauthorized absence; surrendered aboard USS JOHN F. KENNEDY (CV 67) (7 days).

950627:  Commanding Officer, USS JOHN F. KENNEDY (CV 67) recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, and commission of a serious offense, as evidenced by summary court-martial during current enlistment. Commanding Officer's comments (verbatim): SR Adams has been a chronic discipline problem and administrative burden. It is time for him to go home, under Other Than Honorable conditions.

950731:  BUPERS WASHINGTON DC 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 19950814 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: The Applicant requested that the Board assess the merits of his application based on post-service conduct. While the NDRB is authorized to consider post-service factors in the recharacterization of a discharge, 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 a listing of his current/previous employers, a listing of his work ethics/career goals/professional organizations, two character references, his Education Direct transcript, three certificates of achievement, and his notary public commissioning certificate as documentation of his post-service. The Board recognizes the Applicant's efforts since his discharge and commends him on his accomplishment but, in order to consider relief based on post-service conduct, needs to see documentation that is more encompassing than those provided. For example, the Applicant could have produced evidence of educational degrees obtained, documentation of community service, and certification of non-involvement with civil authorities. At this time, the Applicant has not provided sufficient documentation of post-service character to mitigate the misconduct that resulted in his characterization of discharge. Therefore, relief on this basis is not possible at this time.

Issue 2: The Applicant contends that he was a good performer prior to his disciplinary infractions and that his problems in the Navy can be attributed to his being mistreated, and at times assaulted, on a recurring basis. The Board reviewed all available service records of the Applicant and did not find evidence of maltreatment by the Applicant's command. The record does, however, clearly and properly document the Applicant's willful misconduct and demonstrates that he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Further, the Applicant acknowledged and waived his rights to administrative review. The Applicant was afforded the appropriate due process during the processing of his case. Relief on this basis is not warranted.

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 his 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 9, effective
22 Jul 94 until 02 Oct 96), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – A PATTERN OF MISCONDUCT.

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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