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

 
ex-SR, USNR
Docket No. ND03-00732

Applicant’s Request

The application for discharge review was received on 20030320.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to SECRETARIAL AUTHORITY.  The Applicant requests a documentary record discharge review.  The Applicant listed the American Legion as the representative on the DD Form 293.  In the acknowledgement letter the Applicant was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington, D. C. area.  No respond was received.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040401.  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 or the reason for discharge was discovered by the NDRB.  The Board’s vote was unanimous that the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“Dear: Discharge Review Board, The following issues are the reasons we believe my discharge should be upgraded 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 and issues I am submitting.
Issue #1 - I was not told the truth upon entering the U.S. Navy. My recruiter Master Sergeant, J_ E_W_ told me and I quote “after you get out of boot camp and get to your ship simply tell them what school you want and they will train you”. “You can be a pilot and fly jets I put it all in your file, you have it in your file that you should go to flight school and be a combat pilot”. I was naive enough to believe that I was going to be going to “TOP GUN “! U.S. Navy recruiter, Master Sergeant J_ E_ W_ was found guilty in a special court martial of lying to U. S Navy recruits. He was demoted from E-6 to E-l and court-martailed with a dishonorable discharge. I received this information from the Belleville IL. Recruiting station, where I enlisted. Obviously, I would not have access to anyone’s personal military file. We respectfully request that you, the discharge review board, would gain access to J_ E_ W_’s military file and would verify our account of deception upon entering the Navy. Being lied to upon entering service impaired my ability to serve, is our contention, and so warrants an upgrade to honorable discharge”.
Issue# 2- My ability to serve was impaired by my youth and immaturity. My mother signed a waiver so 1 could be accepted in the U.S. Navy, because I was only 17 years old. I was naive enough to be lead-astray by my recruiter and my mother was also bamboozled. In consideration that I was only 17 years old and my mother was deceived and disrespected upon entering service is our contention, and” so warrants an upgrade to honorable discharge”.
Issue#3- My record of promotions showed I was generally a good service member. I was the only one in my squadron to be promoted to Seaman Apprentice -(E-2)- right out of boot-camp. I received letters of appreciation from my Commanding Officer, Captain T_ and Commander of the South Philadelphia Naval Base Admiral R_. I always took pride in helping my ship mates in my respiratory training programs. I also took responsibility in my training to help others in my, prevention to drugs and alcohol program. I was also selected to be a member of the varsity softball team, and I enjoyed playing third base. I even had the opportunity to play in a racquetball tournament with the Captain and Assistant C.O.! When ever the chance would arise I loved playing sports, basketball, softball or lifting weights. To lift my spirits I would go to a movie or the U.S.O. or attend church.
My averages conduct and affiance ratings for behavior and proficiency marks were pretty good. In conjunction with my letters of appreciation and my record of advancement in promotions is our contention, and” so warrants an upgrade to honorable”.
Issue#4- My record of N. J. P.’s / article 15’s indicate only minor offences. I never sought counsel and always pleaded guilty to my charges. Nothing that I was sent to Captains mass would matter in civilian life. I simply had a failure to adapt because I was too young and immature; and my attitude was bad because of how I was deceived into enlisting. Some articles 15’s were so petty like being A W 0 L for 15 minutes. Another minor offence was when I wrote something derogatory towards our new immediate officer in the dust, to make my friends laugh while we were working. That’s when I received my most serious crime of disrespecting an officer and disobeying a direct order. I owned up to the ridicules offence so nobody else got in trouble. When the dust was moved around and the little prank was over it should have just been forgotten but I was fined $100.00 and sent to correctional custody. I did learn some valuable lessons while in Correctional Custody, but the experience left me even more jaded. I continued to receive minor offences of article 86’s and 92’s, 20 charges total in my military career. Once while I was on restricted duty for a minor offence, I went to the swimming pool on the 4th of July. 1 signed out had permission and went swimming. While on restricted duty you have to wear your uniform on base. I walked about 200 yards to the swimming pool with out my uniform on. Somebody told my superior, and he wrote me up on official charges. I explained at Captain mass on July 10 1989, that the pool didn’t have any lockers of any kind and I didn’t want to get my uniform wet and messy. I pleaded guilty to not wearing my uniform while on restrictive duty and got 3 days bread and water in the brig. I was sent off base in hand cuffs to a military prison. I thought the Punishment was a little severe. I remember vividly how sweet freedom felt when I went to McDonalds and ate when I got out. And how beautiful the music sounded just being played in the back ground at that fast-food restaurant, it might sound very weird; but I can still remember that feeling. In August of ‘89 I went to my last Captains mass for my longest period of Unauthorized Absence. My only sister was in a terrible critical car accident. The Red Cross called me and explained what happened. My Chief Petty Officer told me, even though my work and behavior were much better, and I had leave on the books; He was not granting me time off to go home and see her. I went unauthorized absent, but I was going to see my sister. I ended up only calling her on the phone, but she was in too much pain to talk. I couldn’t afford a plane ticket home so I went to turn my self in from being A. W. O L.! When I went to turn myself in things got messy with the military police! So when I was discharged I left the Navy with a broken jaw, a broken right wrist, and a chipped tooth -which I still have today.
I respectfully applied for school and transfers and was always turned down. In October of ‘89 I was given the opportunity for an early out. I signed for the early out (with a broken wrist) with out really understanding its impact. I was told by my superiors that in six months, as long as I kept out of trouble my discharge would automatically turn to a general under Honorable conditions. Based on the facts here and that I was lied to upon entering and exiting my service with the United States Navy; is our contention and “so warrants an upgrade to honorable.”
Issue#5 - I have been a good citizen since my discharge, my records and documents can help prove this. I am in the process of becoming a volunteer firefighter and I support my wife and little girl. My family and I go to mass pretty much every Sunday. I have been a truck driver ever since early ‘95, but recently started my own painting and home improvement company.
I had to drop out of college because I couldn’t financially afford it, with out my veterans benefits and my G. I. bill, which I earned and paid for out of my paychecks; - and busted my hump for. I also was either denied or lost jobs because of the characteristic of my discharge; being other than honorable. Clemency is warranted, because it is an injustice for me to continue to suffer the adverse consequences of a bad discharge! These are “our contentions and so warrants an upgrade to Honorable.

A very respectful thank you: The Discharge Review Board

RESPECTFULLY, SINCERELY & HONESTELY
R_ A_ R_ (Applicant)”

Comments submitted by Applicant’s counsel/representative (American Legion):

“6.  On behalf of the above referenced applicant, and in accordance with 32 C.F.R., section 724.166; SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the following informal comments; and/or issue(s). 

This former member was discharged Under Other Than Honorable Conditions due to a pattern of misconduct as authorized by NAVMILPERSMAN, Art. 3630600.

Essentially, as noted on DD Form 293, this applicant is requesting that his discharge be upgraded because it is too harsh since he was lied to by his recruiter, was young and immature, was generally a good member, had only minor offenses and because he has been a good citizen.  He has submitted 3 pages of additional documentation attesting to his good post-service character and clean police record for consideration.

The SR reflects that SNFM was awarded NJP on 880812 for VUCMJ, Art. 86 (4 specs); NJP on 880914 for VUCMJ, Art. 92; NJP on 881122 for VUCMJ, Arts. 86 (2 specs), 90, 92; NJP on 890119 for VUCMJ, Art. 92; NJP on 890601 for VUCMJ, Art. 86 (2 specs); NJP on 890622 for VUCMJ, Arts. 86, 92 (2 specs), 113 and NJP on 890831 for VUCMJ, Art. 86.  Following due process notifications, he was discharged for the misconduct on 891027.

The American Legion’s express purpose in providing this statement, and any other submittals or opinions of record, is to aid the applicant in resolving any improprieties or inequities in the character and basis for discharge.  Moreover, we rest assured that the Naval Discharge Review Board’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553, and set forth in 32 C.F.R., part 724; SECNAVINST 5420.174C, enclosure (1).

This case is now respectfully submitted to the Board for deliberation and disposition.”

Documentation

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

Request for verification of birth, dated February 16, 1987
Criminal record check, dated August 23, 2002
Character reference, dated March 16, 1998
Character reference from Applicant’s wife, dated March 21, 1998
Ten pages from Applicant’s service record
Applicant’s high school diploma
Certificate of meritorious award season of 1981
Certificate of meritorious award season of 1982
Certificate of award, dated May 9, 1985
Certificate of award, dated May 15, 1984
Applicant’s DD Form 214
Student Academic record

PART II - SUMMARY OF SERVICE

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

	Inactive: None
	Active:   None

Period of Service Under Review:

Date of Enlistment:  870603		Date of Discharge:  891027

Length of Service (years, months, days):

	Active:    02  00  23
	Inactive:  00  04  01

Age at Entry:  18			Years Contracted:  8

Education Level:  12			AFQT:  30

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

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

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  10

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Pattern of misconduct, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

871005:	Applicant ordered to active for 36 months under the Active Mariner Program.

880812:	NJP for violation of UCMJ, Article 86 (4 specs): (1) Unauthorized absence from 0630-1323, 880629, (2) Unauthorized absence 0630, 880721 to 1840, 880722 (1 day/surrendered), (3) Unauthorized absence from 0630-1135, 880725, (4) Absent from appointed place of duty on 880630, to wit: roving security watch, violation of UCMJ, Article 92 (2 specs): (1) Dereliction of duty on 0715, 880527, to wit: sleeping on watch, (2) Failure to obey a lawful order on 880701.
	Award: Correctional custody for 30 days.  No indication of appeal in the record.

880914:	NJP for violation of UCMJ, Article 92: Failure to obey an order from a Petty Officer on 880908.
	Award: Forfeiture of $100 per month for 1 month, correctional custody for 7 days.  No indication of appeal in the record.

881122:	NJP for violation of UCMJ, Article 86 (2 specs): (1) Failure to go to appointed place of duty, to wit: DC study on 881024, (2) Unauthorized absence from 0700-1510, 881117, violation of UCMJ, Article 90: Disrespect towards a commissioned office on 881019, violation of UCMJ, Article 92: Dereliction of duty by failing to become DC/PQS qualified within six months of reporting on board as of 880716.
	Award: Forfeiture of $200 per month for 2 months, extra duty for 15 days.  No indication of appeal in the record.

881205:	Retention Warning from USS KITTY HAWK (CV 63):  Advised of deficiency (Multiple violations of the Uniform Code of Military Justice.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

890119:	NJP for violation of UCMJ, Article 92: Wrongfully drinking alcoholic beverages under the age of 21 in violation COMNAVBASEPHILAINST 5000.1J dated 850211 on 881207.
	Award: Forfeiture of $100 per month for 1 month.  No indication of appeal in the record.

890518:	Retention Warning from USS KITTY HAWK (CV 63):  Advised of deficiency (Unauthorized absences, disrespect towards a commissioned officer, failure to go to appointed place of duty, dereliction of duty, failure to obey a lawful order.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

890601:	NJP for violation of UCMJ, Article 86 (2 specs): (1) Unauthorized absence from 890417 to 890418 (1 day), (2) Unauthorized absence from 890423 to 890424 (1 day).
	Award: Forfeiture of $100 per month for 2 months, restriction and extra duty for 15 days, reduction to SA.  No indication of appeal in the record.

890622:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 0715-0835, 890622, violation of UCMJ, Article 92 (2 specs): (1) Violating restriction order on 890610, (2) Failure to obey a lawful order, to wit: refusing to wear his personal protection equipment on 890617, violation of UCMJ, Article 113: Wrongfully leaving watch on 890617.
	Award: Forfeiture of $250 per month for 2 months, restriction and extra duty for 30 days, reduction to SR.  No indication of appeal in the record.

890630:	USS KITTY HAWK (CV 63) notified Applicant 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 as evidenced by your enlisted service record.

890707:	NJP for violation of UCMJ, Article 92: Failure to obey restricted men’s orders by wearing civilian clothes while in a restricted status on 890704.
	Award: Confinement on bread and water for 3 days.  No indication of appeal in the record.

890809:	Alcohol Dependency Evaluation: Alcohol dependent.  Recommend Alcoholics Anonymous meetings and separation.

890831:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 0700-0720, 890830.
	Award: Forfeiture of $150 per month for 1 month, restriction and extra duty for 15 days.  No indication of appeal in the record.

890913:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

890920:	Applicant to unauthorized absence 0700, 890920.

890927:	Applicant from unauthorized absence 2200, 890927 (7 days/apprehended).

890928:	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):  [SR R_ (Applicant) has been on board this command for 18 months.  He reported on board on 26 January 1988 and since that time he has been punished at Captain’s Mast on eight different occasions.  SR R_ has become an extraordinary administrative burden, his consistent acts of misconduct have had a negative impact on command morale.  His fellow shipmates and I can no longer tolerate the performance of this sailor.  My command will suffer from the very presence of this exceptionally immature individual.  SR R_ does not possess the requisite potential for rehabilitation for further service.  I most strongly recommend his immediate separation from the naval service with an other than honorable discharge.]

891012:	CNMPC 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 19891027 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 1-4:  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.  While he may feel that since his recruiter lied to him and his youth and immaturity were contributing factors, they do not mitigate the Applicant’s disobedience, demonstrating he was unsuitable for further service.  His service record is marred by award of non-judicial punishment (NJP) on eight separate occasions thus substantiating the misconduct.  Additionally, 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 summary of service clearly documents that a pattern of misconduct was the reason the Applicant was discharged.  No other Narrative Reason for Separation could more clearly describe why he was discharged.  Relief denied.

Issue 5 and 6:  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, an alcohol-free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.   At this time, the Board determined that the documentation submitted by the Applicant does not 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 15560A, Change 8 effective 21 Aug 89 until 14 Aug 91), 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