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

 
ex-DKSN, USN
Docket No. ND03-01100

Applicant’s Request

The application for discharge review was received on 20030612.  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.  Subsequent to the application, the Applicant obtained representation from the Disabled American Veterans.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040430.  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/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.  “When I joined the navy I had a lot of issues, like homosexuality & drugs and alcohol, the fact that my brother was murdered, I joined the navy to change my life and learn to become a man.  I got married while in the navy.  I was stationed in Norfolk, VA.  My wife and her two children didn’t come to stay with me, we couldn’t find housing that would take us because of our credit.  I was emotionally unstable from having sex with my brother while we were growing up.  I started drinking very heavy.  This caused me to become a disciplinary problem.  I was accepted into the navy’s inpatient treatment program.  I needed someone professional to talk to.  The captain denyed my going to inpatient.  My wife started to have complication with the pregnancy.  I got her pregnant from my constant going to Detroit on leave.  I ended up touching my step daughter, when I went home, UA, because of the trauma my wife was going through.  I started seeing a psych in Southford, MI who wrote a letter stating to the captain it would be best for me to get out of the navy.  At captain mast he refuse to let me out of the navy with an honorable discharge.  The officer of the deck told me if I wanted to get out all I had to do was disobey the captains order for me to shave.  I wanted to get out so bad that this is what I did.  I told him of all of the above only then did he agree to send me to treatment.  He had left me with no alternative but to disobey his order.  I was unstable and just wanted to get out of the navy.  I did what I though was best for me & my family.  I went home and started therapy.  I am now incarcerated for touching my step daughter.”

Additional issues submitted by Applicant’s counsel/representative (DISABLED AMERICAN VETERANS):

2.  “After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Other Than Honorable Discharge to that of Honorable.

The FSM served on active service from May 27, 1999 to November 22, 2000 at which time he was discharged due to Misconduct-Pattern of Misconduct.  

The FSM contends the current discharge is improper and denotes the reason on the attachment and DD Form 293, Application for Review of Discharge From The Armed Forces.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174C.

Under the premises of equitable relief, we believe the Board can upgrade the FM’s current discharge to a General, Under Honorable Conditions to allow for treatment of his psychiatric disability with the Department of Veterans Affairs.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the applicant.

Documentation

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

Statement in Support of Claim

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	990520 - 990526	COG
	Active:  USN 			None

Period of Service Under Review:

Date of Enlistment:  990527		Date of Discharge:  001122

Length of Service (years, months, days):

	Active:    01  04  05
	Inactive:  None

Age at Entry:  21			Years Contracted:  4 

Education Level:  12			AFQT:  67

Highest Rate:  DKSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  1.00 (1)	Behavior:  1.00 (1)		OTA:  1.00

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  52

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

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

Chronological Listing of Significant Service Events:

000602:	NJP for violation of UCMJ, Article 134: Drunkenness-Incapacitated for performance of duties through prior wrongful indulgence in intoxicating liquor.
	Award: Restriction to the limits of USS PORTER for 25 days, extra duty for 25 days, reduction to E-2 (suspended for 6 months).  No indication of appeal in the record.

000605:	Retention Warning:  Advised of deficiency (CO’s NJP of 000602 for violation of UCMJ, Article 134 Drunkenness-Incapacitated for performance of duties through prior wrongful indulgence in intoxicating liquor), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

000918:	UA 0615, 000918.

000926:	Missed sailing of vessel from Norfolk, VA.

001110:	NJP for violation of UCMJ, Article 86 (3 Specifications), Specification 1: Unauthorized absence 000905-000907 (2 days); Specification 2: 000918-001010 (22 days), Specification 3: Unauthorized absence from 001012-001109 (28 days) violation of UCMJ, Article 87: (2 Specifications), Missing movement on 000926 and 001012; violation of UCMJ, Article 90: Willfully disobeying superior commissioned officer on 001109.
	Award: Restriction and extra duty for 45 days.  No indication of appeal in the record.

001115:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

001115:	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 

001117:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  

001120:	COMCARGRU TWO 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 20001122 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.  When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  Characterization of service as other than honorable  is warranted when significant 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 the award of nonjudicial punishment (NJP) on two occasions for violations of the Uniform Code of Military Justice (UCMJ).  The applicant’s misconduct included drunkenness-incapacitated for performance of duties through prior wrongful indulgence in intoxicating liquor, unauthorized absences totaling 52 days, and missing ship’s movement.  The applicant’s conduct and proficiency markings, which form the primary basis for determining the character of his service, reflect his misconduct, and fall below that required for an honorable characterization of service.  An upgrade to honorable would be inappropriate.  Relief is therefore denied.

Issue 2.  The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, a procedural error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident during the Applicant’s enlistment.  Relief not warranted.
 
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 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