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

 ex-EACA, USN
Docket No. ND03-00795

Applicant’s Request

The application for discharge review was received on 20030403.  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 “POSITIVE REASONS.”  The Applicant requests 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 20040224.  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 and reason for 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 stated
Applicant’s issues, as stated on the application:

1.  “To whom it may concern:

I am writing you to respectfully request you to upgrade my discharge from General Under Honorable Conditions to Honorable.  Also, to return my highest rank I achieved (E-4) to show that I progressed in the Navy on my DD Form 214.  I would like you to do upgrade my discharge based on three reasons: First, I feel that my positive aspects of my performance in the Navy outweighed my negative ones.  Secondly, the punishments I received far outweighed the actions.  Lastly, as I am growing in my career and looking for higher positions in my field, I do not want a negative “blotch” in my background, which doesn’t truly reflect me, my work ethic, and or my ability to do the job.

First, I feel that my positive aspects of my performance in the Navy outweighed my negative ones.  I served my country and Navy for seven years doing my job to the best of my ability be fore getting separated July 10, 2000.  During that time, I made five deployments in my first five years before going to shore duty (one Mediterranean cruise, four seven month deployments with the Seabees to Guam, Spain, Puerto Rico, and Okinawa, Japan).  My first enlistment, I was top of my class in ATD school and I was advanced up one pay grade; I received Good Conduct, Sea Service, Army Joint Unit Commendation, Battle “E”, Navy Expert Rifle, etc. ribbons; I was top of my class during Engineering Aide ‘A” School:  My knowledge of my rate and the way I performed it was far greater than my rank as shown in my last two evaluations (enclosed) of my first enlistment from Naval Mobile Construction Battalion Seventy-Four: I received an Honorable Discharge from my first enlistment.  My second enlistment, I was a third-class petty officer on shore duty in Construction Battalion Unit 410 (CBU-4 10).  I was the 98 percentile when I made third-class.  During my time at CBU-410, I always stayed in PRT standards, met all requirements to take the Navy wide exam for second-class petty officer, I was attending college taking six to nine semester hours to finish my Bachelor’s degree, and taking leadership roles on projects which will show on my one and only evaluation from CBU-4 10.  I received only one evaluation of “must promote during my ~ hole time in this unit, even after I received non-judicial punishment (NJP).  The negative aspects are minor and mentioned in the next paragraph.  I feel certain people CBU-4 10 handled the situation badly and the Navy lost a good Seabee because of it.

Secondly, the punishment I received far outweighed the actions.  I received my first Non-Judicial Punishment (NJP) during my second enlistment after being late three times in a nine month period (approximately) - each time being only a few minutes.  I was awarded at this first NJP: Reduction in Rate (suspended).  Unfortunately, the following day I misread the watch bill for the upcoming weekend.  I was marked as Unauthorized Absence (UA) from duty section muster.  I was called by the duty section and ended up being approximately twenty minutes late.  I was then given NJP again for my mistake.  The suspended bust from my previous NJP was lifted and I went from E-4 to E-2.  The command tried to take me to NJP one more time, the main reason for showing up to a Physical Readiness Test (PRT) in uniform instead of PT gear.  I had a note from a doctor which put me on light and limited and said I didn’t have to do the PRT at that time.  By this time, I had to request a Court Martial at NJP because I definitely thought the punishments were personal and outweighing the actions - right or wrong.  Also, I couldn’t even afford to pay my bills anymore because the significant loss in pay.  Eventually, they backed down from the Court Martial, which I requested, then offered to let me out with a General Under Honorable Conditions.  I accepted this separation at that time only because I needed to get out and get a job, so I could pay my bills.  I know being on time is important and I accept the responsibility for my actions.  But, these punishments were severe for these actions.  I had seven years in the Navy, I was finishing my degree, and I would have definitely advanced to second-class petty officer (I had a “must promote” and I new my rate).  If you review my only evaluation (enclosed) from CBU-4 10 that for the most part I was a valuable part of the command and something just does not add up?

Lastly, as I am growing in my career and looking for higher positions in my field, I do not want a negative “blotch” in my background which doesn’t truly reflect me, my work ethic, and or my ability to do the job.  When I was getting out of the Navy I went on three interviews: a surveying company, an architecture firm, and an engineering firm.  All three were some what related to what I did in the Navy and all three offered me a job.  Well, I took the job with Hartwig & Associates, an architecture firm, started working there on July 12, 2000 (only two days after my separation on the 10”).  I have been there ever since, received two considerable raises, and moving upward every year.  Anyway, at the beginning of this year I was approached by a headhunter from a major firm (multi-disciplined) in the Florida area.  This would have been a great opportunity for me, both money and position wise.  My interview went very good and I most likely I would have been given the job.  I went to Human Resources to fill out the final paperwork.  Anyway, they wanted to do background checks, which would have checked my military discharged, so I didn’t pursue it any farther.  As you see, I was not a perfect match for this firm, and a “blotch” in my history, which does not reflect my work ethic, nor my ability to do this job kept me from this great opportunity.

Finally, I do not think minor mistakes that I have made In the Navy should affect the rest of my life.  The most part of my seven year Navy career I performed really well.  I now have a really good career, and I have bought a new house.  I want to finish my Bachelor’s degree in Civil Engineering, which I was finishing before my trouble in my last command.  I need to have an Honorable discharge, not a General under Honorable Conditions to receive the GI Bill.  Also, so I have a clean background for upward movement in my career.  Enclosed along with this letter is all forms, evaluations, etc. you need to support my claim.  I am hopeful that you will respect my request.

Sincerely,

J_ P_ L_ (Applicant)”

Documentation

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

Applicant’s DD Form 214
Eleven pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	930422 - 930518	COG
	Active:  USN 			930519 - 980517	HON

Period of Service Under Review:

Date of Enlistment:  980518		Date of Discharge:  000710

Length of Service (years, months, days):

	Active:    02  01  23
	Inactive:  None

Age at Entry:  28			Years Contracted:  4

Education Level:  12			AFQT:  72

Highest Rate:  EA3

Final Enlisted Performance Evaluation Averages (number of marks):*

Performance:  3.50 (2)	Behavior:  3.50 (2)		OTA:  3.36

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM, SSDR, AJUC, BER

Days of Unauthorized Absence:  None

*Marks extracted from supporting document submitted by the Applicant.

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:

990404:	Counseling: Advised of deficiency (unsatisfactory room inspection), notified of corrective actions and assistance available. [Extracted from Commanding Officer’s letter dated 000606.]

990409:	Counseling: Advised of deficiency (being late for muster), notified of corrective actions and assistance available.  [Extracted from Commanding Officer’s letter dated 000606.]

990611:	Counseling:  Advised of deficiency (unauthorized absence from morning muster), notified of corrective actions and assistance available. .  [Extracted from Commanding Officer’s letter dated 000606.]

990902:	NJP for violation of UCMJ, Article 86: Unauthorized absence on 990820.
	Award: Forfeiture of $115 per month for 3 months, extra duty for 14 days, reduction to EACN.  Extra duty for 9 days and reduction suspended for 6 months.  No indication of appeal in the record.

990902:	Retention Warning: Advised of deficiency (Unauthorized absence 0730-0819, 990902).  Your DOR reveals numerous counseling chits, notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
	
990908:	Vacate suspended extra duty for 9 days, reduction to EACN.

991027:	NJP for violation of UCMJ, Article 86: Failure to go to appointed place of duty 0730-0819, 990903.
	Award: Reduction to EACA.  No indication of appeal in the record.

000606:	Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of misconduct due to a pattern of misconduct.

000606:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all right.

000606:	Commanding Officer recommended discharge general (under honorable conditions) by reason of misconduct due to a pattern of misconduct.

000628:	Commander, Second Naval Construction Brigade, Norfolk, VA directed the Applicant's 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 20000710 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.  The Board disagrees with the Applicant's contention that he served the United States well and he is entitled to an upgrade.  When the service of a member of U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  A General (Under Honorable Conditions) discharge is warranted when certain 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 two non judicial punishments (NJP’s) and three adverse counseling’s.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant states his punishment received far outweighed the actions.  To maintain proper order and discipline, the military does not view repeated offenses as minor infractions.  The summary of service clearly documents that a pattern of misconduct was the reason the Applicant was discharged.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable.  Relief denied.  

The NDRB noted an administrative error on the original DD Form 214.  Block 18 did not reflect the Applicant’s previous 5 years of honorable service.  The Board notified the Commander, Naval Personnel Command, Millington, TN and recommended the DD Form 214 be corrected or reissued.  

The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities, or reinstate a pay grade, as requested in the issue.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  Relief denied.

The following is provided for the edification of the applicant.  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 naval service.  The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  

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 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