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

ex-ETSN, USN
Docket No. ND01-00889

Applicant’s Request

The application for discharge review, received 010702, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions.  The applicant requested a documentary record discharge review.  The applicant listed the Disabled American Veterans as the representative on the DD Form 293.

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 of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority: NAVMILPERSMAN, Article 3630650.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  For 6 years I performed my duty as an E^2 always to the best of my ability.  I received 3 SUBLANT awards.  I qualified submarine in one patrol, by the fourth patrol I qualified the highest watch station for an enlisted man (COW).  During that fourth patrol I was under a great deal of stress.  Not only was I encumbered with more collateral duties than my peers; I was staying up 2-3 days sometimes fixing electronic equipment by myself.  Everyone knew how much work I was doing but no help.  One of my collateral duties was Data Package P.O., my peers locked S. Data Logging tapes in his locker.  I was blamed and received a Counseling sheet.  I was not written up, because of my stellar performance 4 years prior.  But that counseling was a bad mark for me and I felt messed up my chances for an automatic E-6 frocking by the Captain who himself said he was going to make me an E-6.  My Captain, Commander S. _ M_ J_ of USS Daniel Boone 629 Blue crew.  His nickname for me was Mr.. SINS.  I always felt very proud of that name.  Until the - incident I previously spoke of, which was when 9at that time) ET2 S_ C_ who had Secret Data Logging tapes in a locker that I did not have access to but was blamed for and received an eval. Lower than 3.8 and a counseling sheet.  The next patrol I talked to the X.O. (because Cap. J_ left) and requested a transfer to the USS CANOPUS in Kings Bay GA.  My life on that duty station went down hill.  Not because of the ship or Navy, but because of the life I begun to lead which included heavy boots of drinking and no where relationships.  My depression and drinking increased when I saw my former submarine shipmates, especially when I saw S_ C_ with a E-6 that I felt should have been mine.  Within about 16 months I was transferred to a D-5 submarine school, but while on leave in DC I was arrested and locked up in November 1993.  Upon being released in April 1994.  My drinking expanded to using marijuana.  My drinking and marijuana usage continued so did the no where relationships.  I ended up marrying a woman I knew I should not have.  I was transferred to Norfolk, VA upon being released from jail.  I liked my command and they liked me.  I was assured a Honorable discharge at my EAOS of Nov. 95, but the marriage I was in was very stressful and affected my work.  So spoke to my command and decided to voluntarily leave the Naval Service with an O.T.H. I moved to Texas and had success at jobs in my field of Electricity & Electronics.  I tried to make the marriage I was in work, but....no chance.  I went through another bout of depression.  I got another job as an Engineering Tech. in San Antonio T.X.  There I was happy, in by 1 bra 1 bad house.  After a year I was informed my father was sickly, so I got a job at Bell Atlantic as a Central Officer Technician making $42,000 a year.  I lived with my father and every day I tried to convince him to move with me out of D.C., he always refused, mainly because he was having too much fun having sex with drug-addict prostitutes.  Soon he got - feed up with being robbed, so he bought a gun.  One night I came home and he was arguing with one of is prostitutes, she got angry saw the gun and called the police.  I claimed the gun and went to jail in November 1997.  I got out June 2000.  I attended drug counseling sessions and joined Local #26 (Electricians Union) my life is on the right track now.  I am planning to finish my B.S.E.E. and I would like to buy a house but I need an upgrade of my Discharge not only for school and the House, but also because I feel I deserve it due to my performance and adherence to duty while serving in the USN Submarine Force.  Thank you for your attention.

2.  After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to note the request of the appellant of an upgrade of his Under Other Than Honorable Conditions discharge, to that of Honorable, allowing for equitable relief. The records reflect the FSM served in the United States Navy from April 22, 1987 to June 1, 1995, with a narrative reason for separation as in lieu of trial by court martial.  We believe that based on the good service that the FSM did have, and the high performance marks that he received and referrals to promotion that a General, Under Honorable Conditions maybe more appropriate for this instant case. On the FSM's application he notes responsibility for his inappropriate actions and take responsibility for them, but maintains that because he was unable to separate himself from the surrounding bad influences, he could not control his actions and kept trying to assist those around him to the best of his ability, even though in some instances the decision to do so was inappropriate and therefore believes the current discharge to be unjust. In light of the FSM's request we ask that in the course of the discharge review, if it is determined that the policies and procedures under which that applicant was discharged differ in material respects from policies and procedures currently applicable on a service wide basis to discharges of the type under consideration, that full consideration be given to a change of the current discharge on the basis of equity in accordance with SECNAVINST regulations, with additional consideration given to a change of the current UOTHC discharge to that of a General, Under Honorable conditions. We ask for the Boards careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the applicant.

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Active:   USN			870422 - 891114	HON
	Inactive: USNR (DEP)	870415 - 870421	COG

Period of Service Under Review:

Date of Enlistment:  891115		Date of Discharge:  950601

Length of Service (years, months, days):

	Active:    05  06  16
	Inactive:  None

Age at Entry:  21			Years Contracted:  4

Education Level:  9 GED		AFQT:  68

Highest Rate:  ET2(SS)

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.93 (6)	Behavior:  3.86 (6)		OTA:  3.90

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM, SSDR, NDSM

Days of Unauthorized Absence:  188

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

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority:  NAVMILPERSMAN, Article formerly 3630650.

Chronological Listing of Significant Service Events:

931102:	Applicant to unauthorized absence 0800, 2Nov93.  Apprehended by Fairfax County Police Department.  IHCA.

931105:	Applicant arraigned in Fairfax Country Court at 0759, 5Nov93 and bond was set and applicant returned to Fairfax County Detention Center.  Court date set for 17Dec93.

931217:	Applicant's court date was stayed until 25Jan94.

940125:	Applicant plead guilty to all charges and sentencing date was set for 11Mar94.

940311:	Applicant sentenced to serve 12 months in Fairfax County Adult Detention Center and pay court costs.

940506:	Applicant released and DOB NAVSTA Anacostia, Washington, DC at 1100, 6May94.  Applicant issued TAO's and directed to return to TPU Norfolk, VA no later than 2400, 6May94.  Applicant ROB TPU Norfolk, VA 2030, 6May94 (185 days).

940813:	Applicant to unauthorized absence 0715, 13Aug94.

940814:	Applicant from unauthorized absence 2100, 14Aug94 (1 day/surrendered).

941016:	Applicant to unauthorized absence 0715, 16Oct94.

941017:	Applicant from unauthorized absence 0715, 17Oct94 (1 day/surrendered).

941219:	Applicant to unauthorized absence 0930, 19Dec94.

941221:	Applicant to unauthorized absence 0715, 21Dec94 (1 day/surrendered).

950601:	DD Form 214: Under Other Than Honorable Conditions/In Lieu of Trial by Court Martial, NAVMILPERSMAN, Article 363650.

Separation package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 950601 under other than honorable conditions in lieu of a trial by court-martial (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

Issue 1.  The receipt of commendatory awards and favorable performance and conduct evaluations during the applicant’s tour does not guarantee him an honorable discharge. When a member’s service has been honest and faithful, it is appropriate to characterize that service as honorable.  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 his civilian conviction.  The applicant’s conduct falls short of that required for a characterization of service under honorable conditions.  Relief denied.

Issue 2.  The Board found that the applicant’s age, education level, and test scores qualified him for enlistment.  While he may feel that the bad influences of his off duty relationships contributed to his actions, the record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief 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 sufficient 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 2 Oct 96, Article 3630650, PROCEDURES FOR PROCESSING ENLISTED PERSONNEL FOR SEPARATION IN LIEU OF TRIAL BY COURT‑MARTIAL. 

B.  A punitive bad conduct discharge may be adjudged for violation of the Uniform Code of Military Justice, Article [e.g., 86, unauthorized absence for a period more than 30 days] upon conviction by a Special or General Court-Martial, in accordance with the Manual for Courts-Martial.

C.  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.  

D.  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.

E.  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