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

 ex-STSSR, USN
Docket No. ND02-01323

Applicant’s Request

The application for discharge review, received 20020920, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to RE-3D Failure to Meet Disciplinary Standards.  The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter to the Applicant, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20030828.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: (GENERAL) UNDER HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  I am writing you today to try and get my General (Under Honorable Condition) changed to Honorable and my RE-4 code changed to an RE-3D (Failure to meet disciplinary standards).  This is so I can finish out my military career in the Marine Corps. L was a Marine from 2lOCT90 until 08Feb96.  I joined the Navy on 09FEB96.  While I was in the Marine Corps I had made it to Corporal (E-4).  I got out on an Honorable Discharge.  I have included a copy of my Marine Corps records.  You will see that as a 19 and 20 year old I made a few mistakes and those mistakes were never repeated.  You will also see that I had an average Proficiency and Conduct scores of 4.3 and 4.5 out of a 5.0 scale.  Thank you for your time.

I was stationed on board the USS Augusta (SSN 710) from 18OCT96 to 06MAR98.  During my tour aboard the USS Augusta I was tasked to qualify for my "Dolphins".  During this tour I was finding that I was having a hard time adjusting to the "Sub life" so I asked if I could go to the Surface Fleet and finish out my Navy career.  The response to the request was "No you can not go Surface.  You will either go to another sub or get out of the Navy." I said, "I thought the Submarine Fleet was voluntary." In which I was told "Not anymore." So I stated, "Then I guess I want out."

I should explain the events leading up to me wanting to leave.  One of the first problems was The Sonar Techs were having morning muster.  I wanted to go to medical for personal reasons and my Senior Chief, STSCS M_ L _ T_, stated to me, "You aren't going until you tell me why you want to go."  I said, "OK, I'll tell you after muster."  STSCS T_ said, "No, you tell me now."  So I told him.  Needless to say by the time I returned from medical everyone knew about it and I mean everyone.  I had to get the Corpsman to announce over the loudspeaker for people to leave me alone and if anyone was to make any more comments about it, it would result in harassment charges.

There was also a time when I went into "Dink" status; you are required to get 4 points in a week.  The rules for being dink were to report to the sub at 1900 until 2100 for a 2 hour study period until the next week.  During the week I earned 26 points, 4 for the dink points and 22 extra.  That was the first and last time I wanted to be dink.  Unfortunately, my Sonar Supervisor, STS I Charles K_, said that from now on I'd be on the Dink List until I get my dolphins.  I asked what for and he said it was motivation to qualify faster.  On a personal note I don't see how punishing someone for doing a good job makes sense.  So from there on I turned in 4 points a week.

I was frocked Third Class Petty Officer on or around 23JUL97.  One day we, the Weapons Department, were doing a weapons move and were given McDonald's to eat for lunch.  After the day was over I invited my girlfriend over to my room before I was to report to Dink Study.  At 1800 my 2 roommates arrived.  Around 1815 I was feeling hot and nauseous.  At 1830 I vomited on my clothes and in my bathroom.  I called the ship to let them know what had happened.  I talked to the Duty Officer and he said I was excused from Dink Study and he would try to contact the Corpsman.  The Duty Officer told the Duty Chief that I was sick and would not be coming to Dink Study that night.  The Duty Chief stated I was lying and he was writing me up for Disobeying a Direct Order and Falsifying a Document.  The Duty Chief also had STS1 M_ S_ come to my room and tell me to either go to Dink Study or go to the Hospital.  I said I would go to the hospital.  The doctors stated I was extremely dehydrated.  The next day I was told I was being charged for Disobeying a Direct Order and Falsifying a Document.  I had my 2 roommates write statements on what had happened.  I ended up going to XOI at which the XO, LCDR J _ A_ S_, stated he was not going to send me to Captain's Mast because I could talk my way out of getting busted.  I asked if I could speak freely and was allowed.  I said to the XO that it wasn't that I was a good talker; it was because he even knew I was telling the truth.  This was due to the fact that I kept the clothes in a trash bag when I found out they were writing me up and brought the clothes with me to the XOI.  The XO then took my frock away from me.

The Captain, CDR J_ J_ C_, gets the Dink List every week and stated if anyone is on the dink list for a long period of time they would end up getting disciplinary actions taken upon them.  So since I was always on the list I was issued a Letter of Instruction (LOI) from the Captain on 16NOV97.

We were out to sea when I got issued the LOI.  On 19NOV97, I was getting off the night shift at 0600.  After chow and clean-up assignments I went to see what the Plan of the Day had scheduled.  At 0700 we were to have drills so I decided to go and wait for the drills at my rack.  At 0730 1 was asked by a fellow Sonar Tech, "What are you doing right now?" I stated "Waiting for the drills to start." That is when I was told the drills had been cancelled and I needed to see the Sonar Supervisor STS1 M_ S_ and then check into Dink Study.  I said "OK." I told STS1 S_ that I was waiting on the drills and that is why I didn't check into Dink Study yet.  STS1 S_ stated "No problem.  It is understandable so go ahead and check in and study until 1000." I checked in with the Chief of the Watch (COW) at 0757.  On the 20th or 21st of November I was informed I would be going to Captain Mast for violation of Article 92 (Disobeying A Direct Order).  The mast was held on 24NOV97 in which the Captain stated "You will qualify this ship by 08JAN98 or you will be sent back to mast for Violation of Article 92.  Do you understand?" I said "Yes Sir." I was reduced in rank from E-3 to E-2, restricted to ship for 45 days and forfeiture of half pay for 2 months.

We were on Christmas Stand down while I was on restriction and all I had left on my qualifications was my LPO walkthrough, Division Officer walkthrough and the Board.  I asked STS 1 S_ if he could give me a walkthrough and he said, "Not right now, I'm really busy making rounds.  Try on my next duty day." I said, "OK.  I'll be studying until then." I had to wait 4 days until I could see him again.  On his next duty day I approached STS1 S_ again in the morning at which he said, "Try later on tonight.  I'm really busy." So later on that night I asked him again and STS1 S_ stated, "I don't feel qualified to give you a walkthrough." I stated "OK." I asked the Division Officer if he could give me a walkthrough in which he said, "I want to do it after your LPO walkthrough."  The next day I met with the Chief of the Boat (COB) and told him what was said to me by STS1 S_ and my Division Officer, in which he said for me to see if STSCS T_ could give me a walk through.  STSCS T_ said, "That was what his Supervisors were for."  Once again I went to the COB and told him what STSCS T_ had said.  The COB then asked, "What do you want me to do?" I stated, "Get me off this ship."  Needless to say I didn't qualify the sub so I ended up going to Captain's Mast again for Violation of Article 92.  The Mast didn't take place until 04FEB98.  The Captain said, "You are finally getting your wish to get off the sub."  I was restricted to the ship for 30 days and reduced from E-2 to E-1. 

I was transferred to DEVRON12 on 06MAR98 and worked there until 01APR98 when I was released from the Navy.

Documentation

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

Applicant's DD Form 214
Thirty-one pages from Applicant's service records (Navy and Marine Corps)

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		901022 - 941021	HON
	Inactive: USMCR		941022 - 960208	HON
	Inactive: USNR (DEP)	960209 - 960324	COG

Period of Service Under Review:

Date of Enlistment:  960325		Date of Discharge:  980401

Length of Service (years, months, days):

	Active:    02  00  07
	Inactive:  None

Age at Entry:  24			Years Contracted:  4

Education Level:  12			AFQT:  59

Highest Rate:  STSSN

Final Enlisted Performance Evaluation Averages (number of marks):  [Extracted from supporting documents provided by the Applicant.]

Performance:  2.33 (3)	Behavior:  2.67 (3)		OTA:  2.50

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, Marine Corps GCM, ASR

Days of Unauthorized Absence:  None

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

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

Chronological Listing of Significant Service Events:

971124:	NJP for violation of UCMJ, Article 92: Fail to obey a lawful order at 0757, 971119, to wit: Letter of Instruction, dated 971116, by failing to muster for delinquent study as directed
	Award: Forfeiture of $598.35 per month for 2 months, restriction and extra duty for 45 days, reduction to STSSN, oral reprimand.  No indication of appeal in the record.

971124:	Retention Warning: Advised of deficiency (Failure to obey a lawful order.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

980204:	NJP for violation of UCMJ, Article 92: Failure to obey order or regulation on 1900, 980108, to wit: not showing for delinquent muster, violation of UCMJ, Article 86: Absent from place of duty on 1900, 980108 until 0733, 980109.
	Award: Restriction and extra duty for 30 days, reduction to STSSR.  No indication of appeal in the record.

980319:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

980319:	Applicant advised of 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 

980423:	Commanding Officer directed discharge general (under 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 19980401 with a characterization of general (under 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:  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. A characterization of service of general (under honorable) conditions is warranted when the service member’s conduct constitutes a departure from that expected of a Sailor.  The record is void of any evidence that the Applicant was not responsible for his conduct or that he was treated unfairly by his command.  The Applicant’s service record is marred by award of non-judicial punishment (NJP) on two separate occasions, to include the appropriate retention and discharge warnings.  The Applicant’s summary of service clearly reflects the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, and demonstrated he was unsuitable for further service. An upgrade to honorable would be inappropriate.  Relief denied.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  Relief is therefore 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.   

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 21 Aug 2002, 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