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

ex-ATAA, USN
Docket No. ND02-00789

Applicant’s Request

The application for discharge review, received 020513, 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 & RE-1.  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 and narrative reason of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

Issue 1.  Dear Sir or Ma'am,

Through this letter I hope to provide this board with an account of the personal family hardship that rendered me unable to serve with the Navy, at that time.  It would be pertinent to begin with showing the circumstances approximately six months prior to my discharge.

I was married to R_ C_ on February 7, 1997 while attending Basic Underwater Demolition School in Coronado, CA.  Now, I admit my marriage was rushed and that our courtship was short.  However, I had known R_ for about five years but was not seriously involved until two months prior to our marriage.

Due to an Achilles tendon injury, I was unable to complete but was given the opportunity to come back and try again after allowing a year for recovery.  I also had the option of either staying attached to Special Warfare Command or taking orders within the fleet.  I wanted the opportunity to work in my rate, and was given orders to attend E-2 Hawkeye avionics C school in rout to VAW 21l, stationed at Miramar, CA.

During the time I was attending my C school, I became aware of the fact that four months prior to our marriage, R_ had become the victim of sexual assault.  It was a date rape type situation and she told no one, due to the adverse psychological effects and shame that accompanies such a crime.  I do not know why I was not aware of the symptoms earlier, except that she kept the hurt concealed very well because not even her close family members were aware of what had happened to her.  I may not have noticed earlier because I was so busy with my duties while attending BUDS.  But after being stationed at Miramar, and was able to spend more time with her, did it became apparent to me that something was very wrong.

About month and a half prior to being discharge I confronted R_ about what was bothering her.  And with some hesitation R_ told me what had happened.  The news devastated me, even though this happened months earlier, it happened right then for me and I truly did not know how to deal with such unimaginable pain.  Sense that time I have done quite a bit of research on the effects that rape has on the victims and their families.  The husbands and boyfriends of victims almost always follow with a series adverse psychological behavior that could be classified as confused, reckless and way out of control.  They do not so much as act, but react, as they too are victims.  Some even go to the point of suicide, and most cannot hold down a job with very much success, let alone deal with the stresses of an aircraft carrier flight deck.

I had a hard time sleeping and would be up for days at a time.  I had trouble concentrating and suffered memory loss; sometimes I could not remember what I had for breakfast.  I tried to cope with the situation as best I could but was unable.  After being with VAW 211 for about two weeks I, conferred with my shop supervisor AT1 S_, both asking for help and needing talk to someone.  He instructed me to seek help from a Chaplain and to see the Commanding Officer to request a humanitarian change of station or discharge in order to deal with my family situation.  During this time I was aboard the USS Nimitts on work-ups for a coming cruise.  As my request was being submitted I was pulled from flight deck duty because the command rightfully thought it to be dangerous under my current state of mind.  I spoke with the command master chief and the maintenance officer about my situation and they said they would try and help me and directed me to pull my request to talk to the CO.  I was given duties working on aircraft below the flight deck until we got back to port, but I still was not sleeping but about eight hours every three days.

I was truly trying to fulfill my duties to my very best ability, and had hopes of some day becoming an officer and aviator.  But when we got back to Miramar, I went UA to Salt Lake City, where R_ was staying with her parents for the duration of the upcoming cruise.  To this day I do not understand why I went UA and regret doing so very much.  But I do know that my intentions were only to help my wife and myself to get through what had happened.  I needed closure to the pain and needed time to get over the hurt.  However I can tell you that a person never gets over the hurt, but rather learns to set it aside in order to function and move on with life.  It was never my intention to be a problem to the Navy and, and I don't think my unit quite knew what to do either, they did not have the necessary training to help.  Both my wife and I needed immediate professional counseling and time to work through our troubles.

After returning to work of my own accord after six days I was given Captains Mast and reduced in rank from E-4 to E-3 and put under the direct supervision of the maintenance officer.  I was also given extra duty to include cleaning and waxing all the floors of the VAW 211 hanger and told not to leave for the night until every room was done.  I was able to complete all the rooms but except one, which I believe was the PC office, because the door was locked.  After a lengthy and unproductive search for the duty or assistant duty officer I found myself to be the only person still at the hanger.  So with no other choice I cleaned and put away the equipment.  After leaving the hanger I want to the barracks for the night.  The following morning I felt discouraged alone and let down by my Command and the Navy.  As a result I went UA a second time for four days.

During my time gone I decided it would be best to get request a discharge because under my current state of mind I was not capable to serve in an appropriate manner and needed time to work through this problem.  After returning to Miramar I was immediately given Captains Mast where I requested to be discharged in regard to the circumstances.  I was charged with being UA and also charged with article 92 (failure to obey a lawful order), for not completing "all" of the rooms as told, when in fact I did everything that I possibly could in order to complete the task.  My command exercised no common sense in charging me with an article 92, and was issued unjustly.  I know that that I was a liability at that time to my unit.  And that it was better for all concerned that I be released from service at that time.  But it was both unnecessary and unjust for me to receive an other than honorable discharge under the circumstances.  Considering my exemplary service prior to these incidents.  It is my request that this board that I be given consideration for a discharge upgrade to Honorable for convenience of the government.

Respectfully, (Signed by Applicant)

RE:	To point out errors in evaluation reports used in original discharge proceedings

I do not believe the convening board that issued my discharge were made aware of either my personal circumstances or given a correct evaluation of my character.  If you would, please take a close look at the dates on the enclosed evaluation report given by VAW 112 (97/Mar/31) to (97/Aug/04), and the date on the letter of recommendation given by Chief L_ (11/Jun/97).  Notice how the time frames overlap, and that VAW 112 gave a negative evaluation report for my performance during the period of time when I was under TAD orders under the direction of Chief L_.  And that his evaluation, as my direct supervisor, during that time, in his own words was that "Petty Officer (Applicant) is a highly motivated professional, and intelligent technician whose performance has been outstanding."  Also during that time period I was given duties as shown as a Barracks MAA.  Is it standard naval procedure to put a Sailor with such a low evaluation in such a position?  Such an evaluation may include avoiding responsibility, interferes with order and discipline, Consistent unsat appearance, etc.  I don't believe it is.  Yet, according to VAW 112 it is.  I don’t like to be critical of others-, but there has been a serious error in the evaluation of my character and service with the U.S. Navy.  Which I believe was done for the reason of misleading the convening discharge board that I had been a problem for some time, which is entirely untrue.  My performance while in the Navy prior to the rise of personal problems was outstanding.  I hope that it will be evident to you that I had only the one troublesome episode in which I was unable to deal with in an acceptable manner, and not a problem over a longer period of time.  I ask that a "whole person" approach may be taken in consideration for a discharge upgrade.

Documentation

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

Copy of DD Form 214
Letter of Recommendation from J_ M. B_, dated 26MARCH02
Letter of Recommendation from C_ D. O_, dated 3APRIL02
Letter of Recommendation from J_ A. B_, dated 29MARCH02
Request for Waiver to the Adjutant General of Utah
Memorandum for Record to Utah National Guard
Related documents from service record (8 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	951121 - 960303	COG
		
Period of Service Under Review:

Date of Enlistment:  960304		Date of Discharge:  970910

Length of Service (years, months, days):

	Active:    01  06  07 (Doesn’t exclude lost time)
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  11		AFQT:  84

Highest Rate:  E-2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  1.00 (3)	Behavior:  1.00 (3)		OTA:  1.00

Military Decorations:  None

Unit/Campaign/Service Awards:  LOA, CC

Days of Unauthorized Absence:  6

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

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

Chronological Listing of Significant Service Events:

970730:	Unauthorized absence.  Intentions unknown.

970804:	Returned to military control at 0700 (6 days).

970804:	NJP for violation of UCMJ, Article 86:  Absence without leave, 
Award:  Forfeiture of $556.80 per month for 2 month(s), restriction and 
extra duty for 30 days, reduction to ATAA.
Suspended for 6 months.

970804:	Retention Warning:  Advised of deficiency, Violation of UCMJ, Article 86, unauthorized absence resulting in NJP on 4Aug97, notified of corrective actions and assistance available.

970808:	Report of Declaration of Desertion.
	Declared deserter as of 8Aug97 based on witness statement, believed member may return to Hildale, UT.

970813:	NJP for violation of UCMJ, Article 86:  Absence without leave, and violation of UCMJ, Article 92: Failure to obey order or regulation.
Award:  Forfeiture of $556.80 per month for 2 month(s), restriction and extra duty for 120 days, reduction to ATAN.  No indication of appeal in the record.

970818:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offence and a pattern of misconduct as evidenced by 2 NJPs for UA and 1 NJP for failure to obey order or regulation.

970818:	Applicant advised of rights and elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation 

970827:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offence and a pattern of misconduct.

970903:	COMCARGRU SEVEN 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 970910 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.  A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor.  The Applicant’s service was marred by award of nonjudicial punishment (NJP) on two occasions and an adverse counseling entry on another occasion.  No narrative reason other than a pattern of misconduct more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation.  While he may feel that his personal problems and problems with his chain of command were factors that contributed to his actions, the record clearly reflects his disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  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 inequity must have existed during the period of enlistment in question.  No such error or inequity is evident 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.  Relief not warranted.

The Applicant 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.  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 14, effective 03 Oct 96 until 11 Dec 97), 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