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

 ex-AA, USN
Docket No. ND01-00746

Applicant’s Request

The application for discharge review, received 010508, requested that the characterization of service on the discharge be changed to entry level separation or uncharacterized and the reason for the discharge be changed to "anything that will allow me to re-enlist".  The applicant requested a personal appearance hearing only if necessary.  The applicant did not designate a representative on the DD Form 293.  In the acknowledgement letter to the applicant, he 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 020110.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character and narrative reason of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I would like to take this time to ask your help, I was discharged from the Navy 6 years ago on an Administrative discharge, and I now would like to re-enlist.  At the time of my discharge I can say that I did make some mistakes, I do not believe them to be wrong enough to be discharged at that time.  The first time I was in trouble it was for renting a motorbike in Corfu Greece, I was 19 and in the service less than a year.  I personally did not know that it was against Navy regulations to do this, and to give you an idea of how may people also did not know Captains Mast was held in one half of the Hanger Bay on the USS America, there were about 200 people that were charged with this including Chief Petty Officers and Officers.  We received 10 days restriction to the boat as punishment, which we all did.  About a year later I was written up, we were in Yuma Arizona and the Marine Corp Air field there at this time we were wearing are civilian clothes to and from work, I was leaving work that evening and had a bandanna on my head as I was still on the flight line a Petty Officer King had told me to take it off, when I asked why his answer was "because I f* *kin said so" I did so and when I left the flight line I put it back on thinking that he did not want me to wear it on the flight line.  I later found out that the reason was because of local gangs in the area if I was informed of this when I asked why this situation would have never happened.  I was punished for this by having to wear my uniform to and from work the rest of the time we were down there, which I did.  I am not trying to condone or make an excuse for any thing I did but to show that I did make mistakes and have learned from each one and to show that I was not a bad sailor I made mistakes and I am sure I am not the only one in the world who has.  Now comes a mistake that a due regret saying, I do believe that what I said was wrong and I will never try and say it any other way, but I do believe the situation behind what I said has some meaning.  There was an Airmen K_ that I worked with in my line shack, he was of color and enjoyed getting laughs from everyone by making fun of someone else or there family.  I was one of the ones on the other end of his punch lines on a daily basis, now to understand further why I might have snapped when I was a child between the time I was around 8 to about 13 1 am part Asian only one quarter but when I was younger I looked very Asian to the kids in my neiborhood and was constantly teased once older we were all friends but to tease someone still hurts deep inside and being an only child I did not have a brother or sister to confide in.  After growing up and joining the service I believed that teasing or making fun of someone to get some laughs from someone else was a thing of child ness, I guess I was wrong.  Now the joking with Airmen K_ was going on for about 2 years and one day we were out on the flight line cleaning up the grease and gas that had collected on the pavement, I was sitting down you could say I was staring at the ground, I heard my name called and as I looked up he had pulled out his private parts and was standing there with it hanging 6 to 10 inches from my face.  After that I just about had enough, I went into the shop disgusted about what just happened and I was sitting down, he came in the shop about 10 or 15 min later {I am not quite sure about the time frame for this) and said something to me, I am not sure what he said but I lashed out at him by saying something like this " Ok you black mother f**ker" I am not proud of what I said but it was said out of frustration and anger.  I am by no means racist and if I could remember anyone I worked with at that time they would tell you the same.  I would let him borrow my car whenever he wanted, I would drive him places, and not just him everyone who I considered friends knew that I would do this for any of them and did.  I apologized to him, and for punishment was to apologize to everyone in the line shack that was of color which I had no problem with doing, and was told by one of my friends as I was apologizing that he knew I was not racist and was just pissed off at what Airmen K_ did, soon after that Airmen K_ went to an A school.  Again this is one thing that to this day I do regret saying.  About 2 months after this I had a gate watch from about 6am to 10am I believe this is the right time, I had to look at everyone's ID to make sure they were allowed on the flight line, and being this early in the morning everyone was coming to work during this time.  It was February and cold, a friend of my Airmen A_ came out and asked if I needed anything, I asked him to bring be a heater, which he did, as I was bent over plugging in the heater just after Airmen A_ left I was mistaken by a Warrant Officer as sleeping, now I was in view of everyone that is walking through the gate and the gate is located across my squadrons hanger and in front of my squadrons line shack.  Being early in the morning about 8 or 9 am by this point the sun was out and to fall asleep on such a watch would be in my opinion plain stupid and you deserve to get caught, but I was still charged with sleeping on watch even though I had a witness to prove that I was not sleeping and was not used in my Captains Mast Now my punishment for this was extremely harsh, it was a reduction in rate, half salary for two months and 30 days restriction on base and after all that I was discharged.  Now to show that I believe this was to harsh a friend of mine who went AWOL for over 30 days and to my understanding was not his first time doing this what punished with 15 or 30 days restriction to base.  At this time I was heartbroken and very depressed, so depressed I started drinking too much and almost did not even go home to my parents so how do I tell my parents and friends but I survived because of this I met my wife, which I believe if I was not discharged I would have never met her and she has definitely changed my life.  They informed me that I would receive a General Admin Discharge and I left it at that and did not know I waived my write to present my case to a administrative discharge board I was so depressed and angry about what had just happened being discharged for something I never even did so I stopped caring about myself and fell into a very deep depression and almost became an alcoholic.  So I took my discharge and at first I was going to fight it and try and have it overturned back to a General Admin Discharge but like I said I met my wife and never gave it much thought.  Then about 2 or 3 years later I watched a TV show on the Discovery channel called Carrier at Sea, and from that moment on all I could think about is how I missed being there on the fight deck chasing down F- 14's.  I would watch every show that had to due with aircraft carriers or planes and passion grew more deeply, but at this time I had a good job fixing computers I was making about 32,000 a year then I was laid off about 2 months ago and decided after applying for several jobs over the course of the last two months and no one seems to be hiring so I decided to go back into the Navy again this has been a serious thought of rejoining for quite some time now.  I connected the Navy about this and told I have to due what I am doing now.  I would like to go back in 3 to 6 months from now, now I am truly not saying I did not make mistakes but who of us can say that we never made mistake before, I never missed watch I never got in fights off base never had any problems I have never committed a serious offense except I guess you could call the disobeying a lawful order and renting to motorbike in Greece, but as I said about that it was me and a hanger bay full of others that did the same thing there were no signs and as far as I can remember no one informed anyone of this.  This is obvious because there weren't just airmen there was everyone from E-1 to Officers.  I believe that if I taken seriously not just as some Airmen I would never have been discharged and the Sleeping on watch would never had existed, just before this happened I received a letter of commendation that should be in my record for saving a plane and personal around the plane for my quick actions.  So I am not asking for a change on my record just the chance to prove that it is worth giving someone a second chance, and so I may prove to myself, my parents, my the Navy I can be the best sailor I can be.  I allowed I would like to start from scratch by going back through boot camp as well.  I am older and much wiser, smarter and more mature then I was at 20 so please give me just one more chance.  Respectfully,

Documentation

Only the applicant's service and medical records were reviewed, as the applicant did not provide additional documentation for the Board to consider.

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	920427 - 921201	COG

Period of Service Under Review:

Date of Enlistment:  921202		Date of Discharge:  950414

Length of Service (years, months, days):

	Active:    02  04  13
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  56

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.2 (3)	Behavior:  3.13 (3)		OTA:  3.27

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, SWASM, AFEM

Days of Unauthorized Absence:  None 

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

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

Chronological Listing of Significant Service Events:

931016:	NJP for violation of UCMJ, Article 92:  failed to obey a lawful general order on 93OCT01.
	Award:  Forfeiture of $100 per month for 1 month, restriction and extra duty for 10 days.  No indication of appeal in the record.

931016:	Retention Warning:  Advised of deficiency (misconduct as evidenced by commanding officer's nonjudicial punishment on 16 October 1993 for VUCMJ, Art 92, failed to obey a lawful general order), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

950210:	NJP for violation of UCMJ, Article 113:  sleeping on watch.
	Award:  Forfeiture of $524.85 per month for 2 months, reduction to 
E-2.  No indication of appeal in the record.

950214:	Applicant notified of intended recommendation for discharge and may receive characterization of service as under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by your Captain's Masts of 16 October 1993 and 10 February 1995.

950223:	Applicant advised of his 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.

950313:	Commanding officer recommended discharge with a General (under honorable conditions) by reason of misconduct due to the commission of a serious offense.  Commanding officer’s comments (verbatim):  "AA (Applicant) performance since checking in VF-102 has been marginal at best.  He has continually showed an inability and unwillingness to conform his behavior to even the most rudimentary of naval regulations.  His performance, though marginal, is worthy of a characterization of General Under Honorable Conditions."

950327:	BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

010426:	Board for Correction of Naval Records denied applicant's request for change of his reenlistment code.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 950414 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).

Issue 1.  Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  Under other than honorable conditions 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 award of nonjudicial punishment (NJP) for offenses triable by court-martial on two occasions and an adverse counseling entry on another occasion.  The applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful disobedience of the orders and directives which regulate good order and discipline in naval service, and falls short of that required for an honorable characterization of service.  No other narrative reason more clearly describes why the applicant was administratively separated.  An upgrade and change to the narrative reason for separation would be inappropriate.   Relief is therefore denied.

The applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  Additionally, 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 the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct.  The applicant did not provide any documentation to warrant an upgrade to his discharge.  He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.  Relief denied.

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 – COMMISSION OF A SERIOUS OFFENSE.

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 "afls10.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