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

 ex-YNSR, USN
Docket No. ND02-00434

Applicant’s Request

The application for discharge review, received 020301, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested 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 021029.  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/Misconduct - Pattern of Misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  Dear Navy Counsel of Personnel Boards, I am writing to you regarding my discharge from the Naval Service.  I am applying to upgrade my discharge from Other than Honorable to Honorable.  My request is made in great faith of my former peers of Both Enlisted and Officers of the U.S. Navy.  I just recently learned of my right to apply for an upgrade of discharge.  Please consider my application.

2.  My ability to serve was impaired by my youth and immaturity.  All article 15's in my file are due to alcohol related incidents drawn up by LT M_ W. A_ (LT at that time) LT A_ had a dislike for me for some reason.  I believe it was because of my 1/4 percentage Native American blood.  Mr. A_ told me in a private meeting that he would run me out of the Navy.  I was 19 years old when I enlisted to the Navy.  I was the Master at Arms in Boot Camp.  Meritoriously advanced to E-2 while in boot camp.  At YN "A" School, was the MOD leader.  I showed great potential in the beginning.  My troubles never started until I was stationed at VX-5 China Lake, CA.  LT A_ was the Admin Department Head there.  For whatever reason Mr. A_ had his first opportunity to write up ART 15 during on off post incident.  I damaged a window of an E-5's automobile while trying to retrieve my jacket.  This incident was not on post and not during duty time.  I accepted punishment from Capt K_.  I had many Navy and Marine Officers that spoke very highly of me at my Captains Mast review.

The second Captains Mast was even more bizarre.  While on leave, (my mother was dying, and since then has passed on) I asked that my leave be granted longer.
I called Mr. A_ at home and he agreed to extend my leave.  When I returned, I went to mast because I was UA.  The duty driver was ordered by LT A_ not to pick me up at the Airport because I was UA.  I shown the Skipper a copy of the phone bill that proved my call to LT A_'s home and was told that a Naval Officer would not lie about granting me leave.

The third Captains mast was because I was drinking beer in the barracks and had a girl in my room after hours.  I had a charge of destruction of government property as well.  I fell against a fire door and it broke from its hinges.  This door was easily repaired by the Seabee.  I had to pay for the door.  I understand paying for the door.  This was my third Captains Mast.  I pleaded with LT A_ not to pursue this.  He only laughed and told me that this was it for me.

I did drink while I was in the Navy.  Under age in fact and I know that allot of people do it and get away with it.  I did not get away with it and understanding that some people do and some do not get away with underage drinking.

Under the references, you will notice various letters.  The second reference is from the Naval Criminal Investigative Service; LCDR D_ shows my Department of Justice file had incorrect information on it.  Entry in Error was the LCDR's comments.  The DOJ file (ref 4) showed that I had been charged with False Official Statements, Larceny of Government Property, & false swearing.  These entries were in error as LCDR's remarks in an official Letter.  As does reference (5) from Major J_ M_ stated on official Letterhead that I did not receive a court martial nor received any Article 15's for any of those crimes.  I have fought my Navy record my whole life.  I was fired from my job at P_ securities once my record from the DOJ was discovered.  I never knew about this file and I fought have fought them until all available resources been exhausted.  I successfully challenged the FBI to have them removed.  I have spent thousands of dollars in Attorneys fees getting this information that was in error to begin with off my record.  Fighting the Government if very expensive when you do not have adequate resources.  My point in these letter is to shown you that I have had one hell of a time with charges that were incorrectly put on my record.  My record shows other information that is in error.  I do not know how to challenge my service record.  I cannot put up an adequate defense not knowing how to challenge erroneous information.

The Staff advocate that was assigned to me for my administrative discharge review told me that I should just go along with the review boards recommendation.  I wanted to fight my discharge the whole way.  I do not remember this officer's name but I would have like to go over my case with him at least briefly.  I do not recall us going over my case together.  The LT. went over my case file in his office.  I needed someone to listen to me as to what was going on. Sure, I did a few of those article 15's.  However, not all of the charges had I done.  When I would go to the XO's office to review all charges, I could not explain in any detail about the circumstances regarding the charges.  CDR V_ was always in a hurry to go flying or had other important command issues to deal with.  I was never granted an opportunity to explain anything.  I heard others go to XO's office and their art 15's were dismissed when charged with exactly the same thing I done.  I got no breaks.

I did some wrong things while in the Navy.  These incidents in the Civilian world would have been handled differently.

I am a great person. in Civilian life I have never been arrested, nor have had traffic violations.  If I was such a bad person in the Navy, wouldn't my civilian life follow suit?  I have a wonderful family and am self-employed.

My reasons for asking for upgrading my discharge can be under the following statements.

Under current Navy standards, I would have been given an opportunity of counseling if you will.  I understand that people cannot change the past only live with it.

Under current Navy standards, I would not have been discharged; I would have been given options and I would have fought better.  An Officer would have not intimidated me.  I now know that I can stand up to anyone and give it my all to fight for what I believe in.  Back at VX-5, I never had an opportunity to speak.  Please hear my case.  This is all that I have left.  I need you to grant me an Honorable discharge.

I have been an outstanding Citizen since Discharge and no criminal record to prove it.

My article 15's were minor offences that at other commands would have been handled differently.

I was married for a short time while in the Navy.  My wife left me because trouble was always making financial hardships on our relationship.  I have been married to a different woman for over 10 happy years.  Another important fact in asking for a Change in Discharge status from Other than Honorable to Honorable is that I am not a bad person.  I have been Family oriented since having children.  I have two boys.

Again, most of my issues involved Alcohol and LT. A_.  No charges were ever brought up by any other officer other than LT A_.  The legal officer was directed by LT A_ to charge me and often dug up incidents and would question my friends to what I have been up to.  I tried to resolve issues with LT A_ by asking the Captain to help bury the hatchet between LT A_ and myself.  This meeting did not go the way it was planned.  My request was pretty much ignored and I was laughed at by the whole Chain of Command.  I never wanted to leave the Navy.  The Navy was all I had at that time.  I would give me right arm to be back in the Navy.  I am very proud to have served and by having other than honorable discharge makes me very sad.  I have never been charged with any Civilian crimes.  If I had been sent to another command, not one of these things would have ever happened.

I wish I could take the things I have done wrong in the Navy and change them.  I am not saying I never done anything wrong, an Officer that did not like me for whatever reason unfairly did me in.  Please understand that I am not in any way stating that Naval Officers are bad.  This is not the case.  Every single Line/Staff Officer I met while I was in the Navy showed why they were officers.  The LT I had issues with just would not leave me alone.  I had conversations with other officers that I had contact with everyday that mentioned to me that it would be in my best interest to stay away from M_ A_.  Not one of these officers would go on record.  I never understood that.  I wish I had gone to another command.  The two previous commands gave me leadership positions.  Boot camp-Master at Arms, and "A" School, Mod leader.

Please upgrade my discharge to Honorable.  I sincerely appreciate your time and patience in reviewing my application.  I know that your department has a great deal of responsibility and I am praying that your department will grant me my only wish of Upgrading my discharge to Honorable status.

Documentation

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

Letter from Applicant (4pgs)
Letter from NCIS
Copy of Court Disposition
Copy of NASDR RR Disclosure Roster-Tandem
Letter from SJA Major J_ E. M_

PART II - SUMMARY OF SERVICE

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

	Active: USNR 		891127 - 900124	To enlist USN

Period of Service Under Review:

Date of Enlistment:  900125		Date of Discharge:  910923

Length of Service (years, months, days):

	Active:    01  07  02
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  11			AFQT:  70

Highest Rate:  YNSA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.30 (4)	Behavior:  1.95 (4)		OTA:  3.00

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  27

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:

900919:	NJP for violation of UCMJ, Article 92: Failure to obey order or regulation, violation of UCMJ Article 109: Property other than military property damaged, violation of UCMJ Article 117: Provoking speeches or gestures; violation of UCMJ, Article 134: Drunk and disorderly.
	Award:  Forfeiture of $405.00 pay per month for 1 month, restriction to NWC for 15 days, extra duty for 15 days, reduction to next inferior pay-grade (suspended for 6 months).  No indication of appeal in the record.

900924:	Retention Warning from [Air Test and Evaluation Squadron Five]:  Advised of deficiency (Violation of UCMJ Article 92: Underage drinking; Violation of UCMJ Article 107: Damage to non-military property; Violation of UCMJ Article 134: Drunk and disorderly), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910211:	Retention Warning from [Air Test and Evaluation Squadron Five]:  Advised of deficiency (Violation of UCMJ Article 86: Unauthorized absence (unexcused); Violation of UCMJ Article 90: Willfully disobeying a superior commissioned officer; Violation of UCMJ Article 92: Failure to obey other lawful order; Violation of UCMJ Article 107: False official statements), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910211:	Punishment of RIR to YNSR suspended at CO's NJP of 900919 vacated this date due to continued misconduct.

910211:	NJP for violation of UCMJ, Article 86: Absence without leave, violation of UCMJ Article 90: Willfully disobeying a superior commissioned officer, violation of UCMJ Article 92: Failure to obey a lawful order; violation of UCMJ, Article 107: False official statements.
	Award:  Extra duty for 15 days, restriction to NWC restricted barracks for 15 days.  No indication of appeal in the record.

910529:	NJP for violation of UCMJ, Article 92: Failure to obey other lawful written order by having a female in his barracks room after visiting hours on or about 910419 and on or about 910329 wrongfully drinking under the age of 21, violation of UCMJ Article 108: Damaging a fire door of value of about $210.00 which was military property of the United States Navy.
	Award:  Forfeiture of $376.95 pay per month for 2 months (1 month suspended for 6 months), restriction to NWC for 30 days.  No indication of appeal in the record.

910606:	Air Test and Evaluation Squadron FIVE notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.

910626:	An Administrative Discharge Board, based upon a preponderance of the evidence and by a unanimous vote, found that the Applicant had committed misconduct due to a pattern of misconduct, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

910717:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.  Commanding Officer’s comments (verbatim):  [YNSR G_ (Applicant) became an administrative burden to the command.  He was given a reasonable amount of time to straighten out his personal problems and was unsuccessful.  An Other than Honorable discharge is warranted.  YNSR G_ (Applicant’s) personal problems interfered with his work performance and many countless hours [were] wasted on him due to counseling…]

910916:	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 910923 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 NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted.  The summary of service clearly documents the Applicant’s pattern of misconduct and willful disregard for the requirements of military discipline and demonstrated he was unfit for further service.  The Board found the Applicant’s age, education level, and test scores qualified him for enlistment.  The Applicant’s service of one year, seven months and two days is marred by award of non-judicial punishment on three occasions as well as numerous counseling entries.  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.  Under other than honorable conditions most clearly describes the Applicant’s character of service.  Relief denied.

Issue 2:  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, a positive employment record, documentation of community service, certification of non-involvement with civil authorities, are examples of verifiable documents that should have been provided to receive consideration for clemency, based on post-service conduct.  The evidence provided by the Applicant does not mitigate his conduct while on active duty, and therefore an upgrade based on post-service conduct is not warranted.  Relief denied.

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 any claims of post-service accomplishments 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