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

 
ex-SMSN, USN
Docket No. ND03-00879

Applicant’s Request

The application for discharge review was received on 20030424.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  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 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 was discovered by the NDRB.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority: NAVMILPERSMAN, Article 1910-106 (formerly 3630650).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I enlisted in the United States Navy in March of 1997.   However, I did not have a High School Diploma at the time.   I only had a G.E.D.   I was placed in the Delayed Entry Program for about 5 months.   On August 13, I entered active duty as a Seaman Recruit.  (Undesignated).

My reasons for enlisting were simple.  I was homeless and could not obtain employment.  I sought to do something positive with myself.  I also desired to travel.  Where I come from, young black men have short life expectancies.  I reported to basic training and graduated on schedule in 8 weeks.  I was given orders to U.S.S Dubuque LPD-8 stationed in Sasebo Japan.

I worked long hours in the Deck Department under the watchful eye of Master Chief Roger P_(a BMCM now retired).  Being forward deployed.  I became accustomed to frequent and extensive trips to sea.  Therefore, I became a skilled deck hand.  My first incident of Non-Judicial Punishment was the result of a port call in March of 1998 the ship had in Cairns.  Australia.

I became exceedingly intoxicated, and had to be carried onto the ship.  I was given 17 day restriction, and 30 days extra duties.  I told everyone it was an isolated incident.  This was the first time that I had ever gotten into trouble, in the Navy.

In June 1998, I was in a physical altercation with another shipmate, in my berthing.  I was given 25/30 for this incident.  Following this punishment.  I remained free from mayhem until July the following year.

I was sent to XOI for passing out.  I was sent to rehab treatment in Yokosuka, Japan.  Upon my return I remained alcohol free for several months.  In September, this same year, I took the SM3 Test.  I scored 75, which is the top 1% in the Navy.  It is an achievement I am still proud of.  I was placed in charge of 5 junior sailors.

In June 2000, I was granted 15 days leave, and sent back home.

Upon my return from leave, to Japan, I arrived at the airport late, due to congested traffic.  This caused me to miss my flight.  I was UA.  I was given 30 days restriction, and 30 days extra duties.

After I served my restriction, I went on liberty.  During my liberty I drank until the wee hours of the next morning.  The next day, the hi-yearly Physical Readiness Test was scheduled.  I was so intoxicated that I cursed out the CPO in charge.

I was confined to the ship, to await my fate.  I was sent back to rehab.  "He's such a good signalman,” was my chain of command’s defense to the captain.

Upon my completion of rehab, I firmly resolved to abstain from alcohol.  I began to exercise daily, and worked on my ESWS qualification.  I was awarded my ESWS pin and re-enlisted for 6 years.

December 2000, I also received a LOC from my efforts in East Timor.  I had established 99% accuracy in the retrieval and transmission of all outgoing and incoming visual signals.

Prior to this recognition, I was voted Sailor of the Quarter.  I celebrated that night with many drinks, which led to my becoming drunk.  Alcohol was my way of self-medicating.  It’s all I knew, over the years.

I was then stripped of my award.  I was then given orders to the USS Bunker Hill.  CG-52, located in San Diego, California.  I took leave, then reported in January 2001.

In March 2001, while visiting Tijuana, Mexico, I was robbed, and had my right arm broken.  I was placed on limited duty, at First Lieutenant office, 32nd Street.

In June 2001, while on leave, visiting friends, on base.  I was arrested for drunkeness and provoking the base police.

I was reduced to SMSN, given 45 days restriction, fined ¼ months pay, and sent hack to the alcohol-dependency treatment program, for 30 days.

Upon leaving this treatment, I was extremely bitter towards my superiors.  My work ethics decreased.  I began drinking and fighting again, after hours.  It was during this downward spiral that a co-worker broke into a car, and stole the vehicle Owner’s jacket along with a CD.

That co-worker gave me the CD.

A couple of days later, we were both brought in for questioning.  I refused to incriminate him.  Another co-worker (T_ B_), was more than willing to incriminate both of us.  I overheard her being questioned.  I called her a snitch, and told the police she was a compulsive and habitual liar.

Nevertheless, I was charged with larceny, and a previous marijuana charge was added.

I served 61 days in Miramar brig, and it was deemed that I be given an OTH, in lieu of a court martial.

On June 6, 2002, 1 was discharged from the US Navy.

I will never say that I did not earn my discharge.  My reactions to my fears and feeling isolated led me to be discharged.

Was my conduct honorable? No! I knew the consequences of my actions.  I was raised in an alcoholic, shame-based family, where problems were always faced with alcohol, drugs, and violence.  While I do not blame my family, I do blame my holding onto my family experiences.  I honestly didn’t know how to be around people, without being violent.  I always learned to jump at people when things are not right.  It’s not easy for me to admit this, because it brings up so much stuff.

I only knew how to belong the way that I belonged in my family, which was fight-or-flight.

I have learned, and continue to learn that my past does not equal my future.  And with the written OTH that is there for the public, I feel trapped by my past, and unable to get on with my future.

Why should my discharge be upgraded?
I am committed to use my past, to compel me into a powerful future.  And I need your support, encouragement, and blessing to guide me into that future that can look at, identify and help resolve problems like this around me, by first helping myself to be out there.”

Documentation

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

Applicant’s DD Form 214
Character reference, dated March 26, 2003
Character reference, dated April 1, 2003
Character reference, dated March 26, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	970325 - 970812	COG
	Active:   USN			970813 - 001128	HON

Period of Service Under Review:

Date of Enlistment:  001129		Date of Discharge:  020606

Length of Service (years, months, days):

	Active:    01  06  08
	Inactive:  None

Age at Entry:  22			Years Contracted:  6

Education Level:  11			AFQT:  53

Highest Rate:  SM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA*		Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR (3), AFEM, NUC, HSM, N&MOSR

Days of Unauthorized Absence:  None

*  No Marks Available for review

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

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority:  NAVMILPERSMAN, Article 1910-106 (formerly 3630650).

Chronological Listing of Significant Service Events:

001129:	Applicant reenlisted for 6 years.

010906:	NJP for violation of UCMJ, Article 92 (2 specs): (1) Wrongfully consume alcohol on 010721 disobeying a lawful order issued by MSC to abstain from drinking alcohol five days prior to entering intensive outpatient treatment, (2) Fail to obey a lawful general order on 020705, to wit: wrongfully distributing flyers without prior approval of the Commanding Officer, violation of UCMJ, Article 117: wrongfully use provoking words on 010729, to wit: “Nigger, take these cuffs off me, you are both pussy motherfuckers.  I didn’t do anything,” and “Kiss my ass nigger you ain’t shit” towards police Lt and Police Officer, violation of UCMJ, Article 134 (2 specs): (1) Drunk and disorderly on 010629, (2) Drunk and disorderly on 010721.
	Award: Forfeiture of $692 per month for 2 months, restriction and extra duty for 45 days, reduction to SMSN.  Forfeiture suspended for 6 months.  No indication of appeal in the record.

011011:	Retention Warning: Advised of deficiency (Disobeying a lawful order and regulation (2 specs), wrongful use provoking words, and drunk and disorderly conduct (2 specs).), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

020506:	Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 112A (2 specs): (1) Wrongfully possess 0.13 grams of marijuana, (2) Wrongfully introduce 0.13 grams of marijuana onto Naval Base, San Diego, CA., Article 117: Wrongfully use reproachful words on 020315, to wit: “You’re a bitch and a squealer.”, Article 134: Wrongfully communicate a threat to Seaman on 020315 by saying “That’s alright, that’s alright, I got her number.  What, do you think I can’t get her while I’m in jail?

020507:	Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.  He consulted with counsel and was fully advised of the implications of his request.  The Applicant stated he understood the elements of the offense(s) with which he was charged, and admitted he was guilty of all the charges preferred against him.  Specifically, he admitted to violating UCMJ, Article 112A (2 specs): (1) Wrongfully possess 0.13 grams of marijuana, (2) Wrongfully introduce 0.13 grams of marijuana onto Naval Base, San Diego, CA., Article 117: Wrongfully use reproachful words on 020315, to wit: “You’re a bitch and a squealer.”, Article 134: Wrongfully communicate a threat to Seaman on 020315 by saying “That’s alright, that’s alright, I got her number.  What, do you think I can’t get her while I’m in jail?  The Applicant stated he was completely satisfied with the counsel he had received. The Applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veterans' benefits based upon his current enlistment, and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing.  

020510:	The Commanding Officer, exercising GCMCA, approved the request for an administrative separation in lieu of a trial by court-martial, and directed Applicant’s discharge.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020606 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).  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.  The Applicant requested discharge for the good of the service to escape trial by court-martial.  In the request the Applicant noted that his counsel had fully explained the elements of the offenses for which he was charged and that he was guilty of the offenses.  He further certified a complete understanding of the negative consequences of his actions and that characterization of service could be under other than honorable conditions.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  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 or any other evidence related to his discharge 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 29, effective 
11 Jul 2000 until 21 Aug 2002, Article 1910-106 (formerly 3630650), 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 134, communicate a threat, 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