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

 ex-MSSN, USN
Docket No. ND02-00951

Applicant’s Request

The application for discharge review, received 020618, 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 030331.  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/Separation in lieu of trial by court martial, authority: NAVMILPERSMAN, Article 3630650.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  I was working diligently to complete and graduate from the basic training in Great Lakes, Illinois.  I was held back for a few months, because I had difficulty in being a third class swimmer.  During this my family began to be corrupted.  My wife was unable to pay bills and we were losing our house, our children attendance and grades were bad in school.  I was not making very much in boot camp; it increased a little but not enough to survive.  I had talked to the commander about a hardship discharge and I was told to forget it.  My life in the military was like a roller coaster, I was ordered to shore duty.  At this time, I received awards decorations and letters of recommendations.  My job was giving to me as Yeoman, which I had no experience in.  I join the navy to be military police or mess management specialist.  I worked in the office environment for one and a half years, which was stressful, and I had no training in this field.  I prepared myself by motivation.  My Enlisted Performance Evaluation Report was 3.4 overall during the period of September 29, 1989 to January 31,1990.  Next period February 10, 1990 to June 19, 1990, my wife and children join me in the navy house.  All my problems began to increase at this time.  My superior gave me an order to divorce my wife.  I explained to my superior personal that I knew that my wife was being unfaithful by sleeping with all the men on the base and when I confronted her about this she called the police and said that I was batting her, which was false.  When I discussed these problems with her she decided to move her and the children to stay with her grandmother in Detroit.  Period June 15, 1990 to June 30,1991, while working two jobs I continue to support my family be sending money home for their basic needs.  I drove home on the weekend twice per month.  At this time, I thought my marriage was building back up.  I received a 3.6 on the enlisted performance evaluation report.  I completed my entire education and training course for mess management specialist, ms3, ms2 and msl.  During the time of July 1, 1991 to January 31,1992, the food service officer was getting ready for his retirement.  My enlisted performance evaluation report was 1.0 overall.  The commander of base finally granted my wish to get me out of the military.  I was discharge other than honorable condition.  I made several attempts to be discharged, compassionate reassignment, hardship discharge and medical discharge, which were all denied.  My only why out of the military was to hit enlisted officer (e6).  I was pushed, teased by him because of the way I talk and he was sleeping with my wife.  Also, he was racist. After I left the military life my marriage improved.  I begin to attend church services.  I learn how to control my temper and be a family man.  The children was improving and the family was getting better for several years then things went down hill again.  So, I divorced my wife and now I had joint custody of the children.  I now work for a major corporation and received different awards.  I have got remarried and life is almost perfect.  The following issues are the reasons I believe my discharge should be upgrade to Honorable.  If you disagree, please explain in detail why you disagree.  The presumption of regularity that might normally permit you to assume that the service acted correctly in characterizing my service as less than honorable does not apply to my case because of the evidence I am submitting.

•	·I receive awards and decorations.

•	·I received letters of recommendation.

•	·I was so close to finishing my tour that it was unfair to give me bad discharge.

•	·I have been a good citizen since discharge.

•	My record of NJPs/Article 15s indicates only isolated or minor offenses.

•	·My ability to serve was impaired by my youth and immaturity.

•	My ability to serve was impaired because of marital and family and child care problems.

•	Financial problems impaired my ability to serve.

•	Personal problems impaired my ability to serve.

•	I faced racial discrimination and that impaired my ability to serve.

•	I had tried to apply for a hardship discharge but was unfairly told to forget it.

•	I had applied or tried to apply for a compassionate reassignment but was unfairly denied or told to forget it.

2.  There are several issues that provided a good basis for upgrading my discharge; I received awards and decoration.  I received letters of recommendation.  I was so close to finishing my tour that it was unfair to give me bad discharge I have been a good citizen since being discharge.  My record of NJP/Article #15 indicates only isolated or minor offense.  My ability to serve was impaired by youth and immaturity.  My ability to serve was impaired because of martial, and family and child care problems financial problems impaired my ability to serve. I faced racial discrimination, and that impaired my ability to serve.  I had tried to apply for an hardship discharge but unfair told forget it.  I had applied or tried to apply for a compassionate reassignment but was unfairly denied or told to forget it.

Documentation

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

Character reference, undated
Character reference, undated
Applicant's DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	890531 - 890611	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  890612		Date of Discharge:  920224

Length of Service (years, months, days):

	Active:    02  08  13
	Inactive:  None

Age at Entry:  23			Years Contracted:  4

Education Level:  14			AFQT:  29

Highest Rate:  MSSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.93 (3)	Behavior:  3.00 (3)		OTA:  3.10

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/separation in lieu of trial by court martial, authority:  NAVMILPERSMAN, Article 3630650.

Chronological Listing of Significant Service Events:

890615:	Retention Warning:  Advised of deficiency (Non-swim qualified.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

890830:	Retention Warning:  Advised of deficiency (Failure to qualify as a Fourth Class Swimmer and hence, designation as a non-qualified swimmer.), notified of corrective actions and assistance available, advised of consequences of further deficiencies.

900626:	Mental Health Unit: A: Applicant's sense of frustration and feelings of being overwhelmed are resulting in increased confusion and non-productive attempts to get things his way, as well as increased anger.  His coping capacities are quite strained at this time and talking about consequences doesn't register with him.
	P: (1) RTD, (2) Return PRN, after getting scheduled appointment.

900806:	Mental Health Unit: O: Applicant in for follow-up.  He denies any military infractions.  States his work is considered so good that he is supervisor of 5 shipmates; and can offer no understandable reason as to why he was dropped from Family Advocacy Program.  Continues to work 2 jobs…, plus plans to take coursework in Food Service Management in the fall.  Pass his MS3 test.  Denies problems at home, but refused to sign so I could talk with his wife.  States a SW comes 1/wk to their house to check on the children.  A: His story & command's do not match.  Further data is needed.  P: Member to have his supervisor call.  Talk w/Master Chief F_.  Reassess with member in a wk.
	O: Talked with Master Chief F_ who states member has about 14 counseling sheets for small infractions like being late for muster, not follow thru on guardrail run, disrespect to a superior and making a false statement.  M_ says his work must be checked at each step and that in addition to maximum supervision, he can do only minimal tasks.  Copies of counseling sheets will be sent here.

900813:	Mental Health Unit: Assessment: The combination of his borderline intelligence and paranoid personality disorder (secondary to borderline intelligence) render him unfit for military life.  Axis II: Borderline intellectual functioning, severe, EPTE.  Paranoid personality disorder, secondary to borderline intelligence, severe, EPTE.  Plan:  Recommend administrative separation as expeditiously as possible.  He'll continue brief supportive Rx till discharge in MHU.

900827:	NJP for violation of UCMJ, Article 86: Fail to go to at time prescribed to appointed place of duty on 1300, 900613, to wit: 1300, extra military instruction muster, with command master chief.
	Award: Restriction for 30 days, reduction to SA.  No indication of appeal in the record.

900831:	Mental Health Unit: O:  Emergency appt.  Applicant went to Captain's Mast 8/29/90 and was reduced to E2 and sent to TPU restriction for 30 days.  Consequently he cannot go to his 2nd job.  Member stated he was told a page 13 is being written up on him.  He was very agitated and felt unjustly treated (he thought he was at Captain Mast only for 6/14/90 late to work infraction).  Attempts to reach Master Chief were unsuccessful.  I did talk with legal from his regiment, who confirmed he will be getting a page 13 and maybe here 6 months before admin sep is processed.  I informed legal of Cmdr S's involvement in this case.  Ways for member to deal with this crisis were discussed.
A: Member's symptoms are greatly exacerbated by above events and continue to demonstrate his incapacity to perform routine military assignments and the ensuing emotional decompensation it brings about.
P: Talk with Cmdr S_ re: Chapter 13.  Talk with Master Chief F_ re: 2nd job problem.  MHU will provide PRN support for member.

900905:	Mental Health Unit:  O: Talked with Cmdr S_, who confirmed chapter 13 has been written, but since there is no hope of member remediating on Mast charges, Cmdr S_ will take action to expedite Applicant's discharge within 30 days.

900912:	Retention Warning:  Advised of deficiency (Mental conditions of severe borderline intellectual functioning and paranoid personality disorder as identified by Dr. A_ W_, PSY. D, Clinical Psychologist on 13 August 1990.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920129:	Branch Medical Clinic:  Applicant being admin sep due to striking a petty officer.  Being separated versus court martial.  Applicant evaluated by MHU 6-90 thru Sep90 and was recommended for admin separation due to (1) borderline intellectual functioning, severe, EPTE, (2) paranoid personality disorder due to above, severe, EPTE.  Applicant was found unfit for military life.  P: Per phone call with MHU Applicant does not need to be re-seen.

920224:	DD Form 214:  Applicant discharged under other than honorable conditions by reason of separation in lieu of trial by court martial, authority:  NAVMILPERSMAN, Article 3630650.

Separation package missing.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 920224 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).  The fact that the Applicant submitted evidence does not negate this presumption.  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:  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.  Furthermore, the Board disagrees with the Applicant’s assertion that his overall service record warrants an honorable discharge. When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service as honorable.  A characterization of service of under other than honorable conditions is warranted when the member’s conduct constitutes a significant departure of that expected of a sailor.  While he may feel that his personal problems and immaturity contributed his actions, the Applicant’s service record is marred by award of non-judicial punishment (NJP) and striking a petty officer, an offense triable by court-martial, thus substantiating the misconduct.  The Applicant’s summary of service clearly reflects his disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service.  An upgrade to honorable conditions would be inappropriate.  It must be noted that most Sailors serve honorably and well and therefore earn honorable discharges.  In fairness to those Sailors, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  Relief denied.

Issue 2:  The Applicant stated his discharge was inequitable because his ability to serve was impaired because of racism and unfair denials for hardship discharges and compassionate reassignments.  The record is void of any evidence that the Applicant was a victim of racial discrimination or was unfairly treated by the command.  The discharge was proper and equitable.  The Applicant also states that his record only indicates isolated or minor offenses.  His minor offenses were not used against him during the discharge proceedings.  Relief denied.

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 relief, based on post-service conduct. At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.  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 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 [91, assault upon a petty officer] 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