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

 ex-AN, USN
Docket No. ND02-00501

Applicant’s Request

The application for discharge review, received 020308, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to convenience of the government.  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 021115.  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/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  To whom it may concern,

I would greatly appreciate your time and consideration in reviewing the facts and reasons related to my discharge.

During the enlistment process I repeatedly stated to the recruiter that my primary reason for joining the US Navy was to become a Navy Seal; or at least try to go through the arduous training that these extraordinary soldiers experience.  I feel that the recruiter knowingly took advantage of my ignorance in regards to the legal statues of military codes of conduct and never revealed the fact that I had to be a US citizen to go for Navy Seal qualification.  Instead, the recruiter told me that I had to obtain citizenship after boot camp and for me "not to discuss the subject with anybody."  I theorize he did this to ensure that I didn't run the risk of losing my enlistment.  In addition, the recruiter never took the time to discuss the a schools and specific jobs that the Navy offers to new recruits.  I attended boot camp to find out that my dream of becoming a Seal will never be realized and that I was to be a plain Airman with no job.  I felt betrayed by the so-called "professionals" that were supposed to guide me in the right direction; the same people that one day were going to be my shipmates.  I strongly believe the recruiter took advantage of the fact that I couldn't speak English very well.  Despite all the "lies and games" that the recruiter displayed to get me in, I did pass boot camp and went on to the Naval Training Center where I was awarded a top performance recognition letter granting me an a school.  A school that was no granted by my assigned squadron Fitron VF-41 , instead I was assigned to the galley where I had to carve food and chop vegetables; activities which I felt were not my responsibility.  Such events resulted in a change of my perception towards the US Navy and all that it stood for.  Ironically, I received a letter of commendation from the galley for "service excellence", yet my request for an a school was never acknowledged by my squadron.  I hadn't given up just yet.  I had hoped to finish my training to become a plane captain with the goal of working on Aircraft.  To my discontent, squadron VF-41 continually ignored my requests to be sent to school or back to the line shop to finish my qualifications.  Unfortunately, with my frustrations growing stronger, I was involved in an altercation with a shipmate in a St. Martin port stop, for which I was sent to restriction because the incident was Alcohol related.  Likewise, my goal was aircraft maintenance and troubleshooting... I never wanted to do menial kitchen duties. In Fact, if I had previously known that I was never going to be able to become a Navy Seal or that I was going to be sent to the kitchen without wanting to be a cook, then I never would have joined the Navy in the first place.  When my division officer order me to go back to the galley and wash dishes, I refused, explaining to him that I didn't join the US Navy to partake in such duties and that I'd rather be out of the Navy than doing something I was not happy doing.  Unfortunately, the series of the events described here in were brought by my feelings of frustration and hopelessness which was why I was discharged with a pattern of misconduct.

Allow me to point out again that my average conduct, proficiency marks and efficiency rating were good.  I'm proud to say that I received awards, recommendation letters and my record of promotions proved I was a good service member.  Furthermore, I have been a good citizen since my discharge, with education and working in a professional environment being my top priorities, which I believe should be taken into consideration when making a decision regarding my reenlistment approval.

I therefore express trust in your sound judgement and professionalism in making what I am confident, will be a prudent, positive decision.

Again, I appreciate your time and consideration and look forward to speaking with you or meeting with you in the near future.

I can be reached at (201) 348-1635 or at 130 39th st. Union City, NJ 07087
.

Documentation

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

Letters from Applicant (3)
Letter from Department of Public Safety Bureau Criminal Identification
Copy of DD Form 214
Copy of Evaluation Report & Counseling Report (4pgs)
Copy of Administrative Remarks (Top Performer Designation)
Copy of Letter for Commendation (Food Service Attendant of the Month)
Copy of Transcript from Teterboro School of Aeronautics
Copy of School Graduation Certificate from Teterboro School of Aeronautics 
(General Powerplant)
Letter for Enlistment, waiver request, from New Jersey Army National Guard
Copy of School Graduation Certificate from Teterboro School of Aeronautics 
(Airframe)
Copy of Temporary Airman Certificate
Copy of New Jersey Operator License
Copy of Resident Alien Identification
Copy of Social Security Card
Copy of Certificate of Completion for FAA approved Line Service Training Course 
in Ground Handling, Fueling and Fire Safety
Copy of Certificate of Excellence (Communicating with Care Module)
Copy of Certificate of Excellence (Teamwork Module)
Copy of Certificate of Completion (Line Service Specialist)
Copy of Certificate of Completion (AAA Driver Improvement Program)
Employment Letter from PSEG Service Corporation
Copy of Notification of New Hire (2pgs)
Copy of Certificate of Completion (OSHA 1910.146 Permit Required Confined 
Space Entrant, Attendance and Supervisor and Fall Protection Training)
Copy of Certificate of Completion (OSHA 1910.120 Hazwoper 24 Hour Hazardous 
Materials Technician Training)
Copy of Certificate of Completion (DOT Overview and Transportation of Hazardous 
Material Training 49 CFR Part 171-179)

PART II - SUMMARY OF SERVICE

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

	Active:  USN 			None
	Inactive: USNR (DEP)	970520 - 970916	COG

Period of Service Under Review:

Date of Enlistment:  970917		Date of Discharge:  990311

Length of Service (years, months, days):

	Active:    01  05  24
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  30

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (2)	Behavior:  3.00 (2)		OTA:  3.00

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

Chronological Listing of Significant Service Events:

981211:	NJP for violation of UCMJ, Article 128: Assault.
	Award:  Restriction and extra duty for 10 days.  No indication of appeal in the record.

990208	Issued NAVPERS 1626/7 Report and Disposition of Offense(s)
	[Extracted from CO’s ltr dated 990211]

990210	Issued NAVPERS 1070/613 Counseling and Discharge Warning.
	[Extracted from CO’s ltr dated 990211]

990211:	NJP for violation of UCMJ, Article 92: Failure to obey order or regulation, violation of UCMJ Article 86: Unauthorized absence.
Award:  Oral reprimand by Commanding Officer.  No indication of appeal in the record.

990211:	Applicant notified 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.

990211:  	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 

990212	Issued NAVPERS 1070/613 Counseling and Discharge Warning.
	[Extracted from CO’s ltr dated 990211]

Unknown	Issued NAVPERS 1070/613 Counseling and Discharge Warning.
	[Extracted from CO’s ltr dated 990211]

990212:	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):  [AN P_ (Applicant) fails to meet requisite standards of performance, discipline, and character that an enlistment in the United States Navy requires.  AN P_ (Applicant) has shown a disregard for standards of military conduct and discipline both on and off duty as evidenced by his pattern of misconduct and commission of a serious offense.  AN P_ (Applicant’s) inability to follow naval standards of discipline and performance provide the basis for my recommendation to separate him from the naval service with an Other Than Honorable discharge.] 

990216:	Commander, Carrier Group EIGHT authorized 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 990311 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).

The Applicant requests his other than honorable discharge be upgraded so he can enlist in the New Jersey Army National Guard.  He cites his good service record, awards and letters of recommendation as evidence that he “was a good service member.”  The receipt of commendatory awards and favorable performance evaluations during the Applicant’s enlistment does not guarantee him an honorable discharge.  The Applicant served one year and five months of a four-year enlistment. His service record is marred by award of non-judicial punishment (NJP) on two occasions.  The Applicant was charged at NJP for assault, unauthorized absence and failure to obey an order or regulation.  The Board found that the Applicant’s age, education level, and test scores qualified him for enlistment.  While he may feel that his immaturity, personal frustration and hopelessness were factors that contributed to his actions, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated he was not fit for further service.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives that regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service.  An upgrade to honorable would be inappropriate.  The Applicant is responsible for his actions and must accept the consequences of his misconduct.  The Applicant’s discharge was proper and equitable.  The Board will not grant relief on this issue.

The Applicant requested the reason for discharge be changed to Convenience of the Government.  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 Applicant’s DD Form 214, Block 26, Separation Code, indicates he was separated for a pattern of misconduct.  Service members may be separated for a pattern of misconduct when they have two or more non-judicial punishments in their current enlistment.  The Summary of Service clearly documents the Applicant’s pattern of misconduct.  No other reason for discharge could more clearly describe why the Applicant was discharged.  Relief not warranted.

The NDRB has no authority to make recommendations to permit reenlistment, reentry, or reinstatement into the naval service or any other branch of the Armed Forces.
 A request for waiver is normally done during the processing of a formal application for enlistment through a recruiter.  Relief is therefore denied.

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, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for clemency, based on post-service conduct.  The evidence submitted 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), Change 18, effective
12 Dec 1997 until Present, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - 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