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

 ex-ETSA, USN
Docket No. ND02-00744

Applicant’s Request

The application for discharge review, received 020501, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  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 030206.  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, as submitted

1. Before arriving at my duty station I had a promising start to my career which included being 3rd in my ET class as well as being named sailor of the quarter at Great Lakes as well as 4.0 evals.  I married the mother of my child in transition from "C" School to my duty station.  Upon arriving at Naval Air and Weapons Station at China Lake, CA I immediately got off to a bad start and in particular fell under the scrutiny of a man whom I believe had a personal vendetta against me.  I can't remember his name but I believe that it was LN1 J_.  Me and my young wife had domestic disputes but never any physical violence at which time they forced me from my home and placed a restraining order on me to stay away from my family which placed a tremendous amount of stress on me which affected my work and drove me to alcoholism.  My wife contacted me on Christmas Eve telling me that her and my son missed me and wanted to see me at which time I told her I couldn't because of the order but after her crying and begging me.  I met her off the base and discussed the possibility of divorce which infuriated her and made her insist that she would ruin my career.  Later that night police arrested me at my barracks and took me to jail for domestic violence.  After a stay in jail at Bakersfiled, Ca. I returned to the base at which time I was taken to Captains Mass and reduced in rank.  The LN1 coerced a statement out of my 17 yr old wife, gave her my money, and sent her and my son home on Christmas Day while I was in jail. Shortly after getting out of jail me and a friend that I had met named MS2 T_ R_ went into town to get beer because we were watching an NBA playoff game in his room.  Upon arriving at the store we met a white female who approached us and asked could we take her with us to party with us.  After drinking and watching the game T_ said he was sleepy and went to sleep at which time me and the girl went to my room and talked for an hour or two at which time I told her I was going to bed.  She asked me could she spend the night at which time I told her no.  The next morning I went to work and was promptly arrested on a host of charges stemming from rape to false imprisonment at which time I was immediately escorted to the Naval Brig at Long Beach, Ca.  After 2 months of thorough investigation all charges were dropped and the case was never brought to a court martial.  Upon arriving back to my duty station I was harassed by this LN1 and also got into an argument with my boss MAC R_ at which time I was brought to captains mass again, reduced in rank and offered the opportunity to get out with an other than honorable discharge at which time I gladly accepted not knowing the severity of this action.  These people detained me for 3 hours, harassed me, and then escorted me to the gate and shoved me off the base and told me if they caught me there I would be taken to jail at which time I came back home and faced a slew of problems in which I am still recovering from till this day.  Currently I am trying to get my life in order and this discharge upgrade would assist me greatly.  Thank you.

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):

	Inactive: USNR (DEP)	910815 - 920406	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  920407		Date of Discharge:  940525

Length of Service (years, months, days):

	Active:    02  01  19
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  11 GED		AFQT:  77

Highest Rate:  ET3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.20 (1)	Behavior:  2.80 (1)		OTA:  2.80

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  20 

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 3630650.

Chronological Listing of Significant Service Events:

920903:	NJP for violation of UCMJ, Article 92: Failure to obey a lawful general regulation on 920830, to wit: wrongfully consuming alcoholic beverages while under the age of 21.
	Award: Forfeiture of $440 per month for 2 months, restriction and extra duty for 30 days.  Forfeiture of $440 for 1 months suspended for 3 months.  No indication of appeal in the record.

931223:	Applicant to unauthorized absence 0330, 931223.  Applicant in civil confinement pending civil charges.

940202:	NJP for violation of UCMJ, Article 86: Absence without leave from 0330, 931223 until 1855, 940112 (20 days/apprehended), violation of UCMJ, Article 90 (9 specs): Disobeying superior commissioned officer, to wit: was ordered to stay at least 500 yards from 428 Ashworth, violation of UCMJ, Article 134: Failure to pay a debt, to wit: failed to make payments to Consumer Adjustment Corporation.
	Award: Forfeiture of $484.95 per month for 2 months, extra duty for 45 days, reduction to ETSN.  No indication of appeal in the record.

940208:	Applicant to unauthorized absence 0700-0730, 940208.

940209:	Applicant to unauthorized absence 0700-0741, 940209.

940317:	Applicant found competent to perform duty.

940318:	NJP for violation of UCMJ, Article 86: Absence without leave.
	Award: Forfeiture of $466 per month for 2 months, extra duty for 45 days, reduction to ETSA.  No indication of appeal in the record.

940525:	DD Form 214: Applicant discharged under other than honorable conditions in lieu of a trial by court-martial, authority:  NAVMILPERSMAN, Article 3630650.

Separation package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 940525 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).

The Applicant contends his discharge was inequitable and improper.  He believes his discharge was the result of a number of factors. One of these factors was his battle with alcoholism.  The Board found the Applicant was of sound mind when he committed his misconduct.  While he may feel that his alcoholism was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  Alcohol abuse is never a defense to misconduct.  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 on this basis is denied.

The Applicant also contends his disciplinary problems were the result of family problems.  The NDRB recognizes that serving in the U.S. Navy is challenging.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  It must be noted that most members of the Navy serve honorably and therefore earn their honorable discharges.  In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  The NDRB agrees that the Applicant's service was equitably characterized as being performed under other than honorable conditions.

The Applicant asserts his overall service record warrants an upgrade to his discharge.  When the service of a member of U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  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 the imposition of nonjudicial punishment on three occasions and his discharge in lieu of trial by Special Court Martial.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, is the result of his willful failure to meet the requirements of his contract with the U.S. Navy and falls short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The following is provided for the benefit of the Applicant.  Normally, to permit relief, the discharge or characterization of the Applicant's service had to be improper or inequitable.  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.  Relief denied.

The Applicant is reminded that the period of eligibility for a personal appearance hearing is 15 years from the date of discharge.  The application package must be submitted to the NDRB prior to the expiration of the 15 year period.  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 5, effective 
05 Mar 93 until 21 Jul 94, 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 “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