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

ex-EM3, USN
Docket No. ND03-01188

Applicant’s Request

The application for discharge review was received on 20030630.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record review.  The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20040514.  After a thorough review of available 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)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630605.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1“Members of the Board.

I would like to start by thanking you for reviewing my records, and I would like to apologize for the circumstance which you have to review them under.  I will be referencing DoD Directive 1332.14 rev. March 4, 1994, MILPFRSMAN 1910-138, and my service record.  I also have supporting documentation in the form of a witness’s statement from EMC L_, a statement from LT J_ (electrical division officer at time of the offenses), and my written statement to the discharge board.  This is to prove that according to the discharge guidelines I should not have been discharged.

I would like to begin by referencing my DD 214 line 28 titled Narrative Reason for Separation.  It states for reason of Misconduct.  Now going to DoD Directive 1332.14 line E3.A1.1 is titled Reasons for Separation.  That leads to line E3.A1.1.11 titled Misconduct.  Reading down the page you would come to E3.A1.1.11.1.1.  Reasons.  Here it states that a member may be separated for misconduct when it is determined under the guidance set forth in section E3.A2.1.1. of Part 2 that the member is unqualified for further military service by reason of one or more of the following circumstances.  We will get to those circumstances later, but let’s start by going to line E3.A2.1.1 of Part 2.  This falls under the section titled Guidelines on Separation and Characterization, and E3.A2.1.1 is Separation.  Reading down the page you come to E3.A2.1.1.2 Guidance, and this refers to guidance on whether or not to separate.  The first line following Guidance is E3.A2.1.1.2.1.  There is substantial investment in the training of persons enlisted or inducted into the Military Service.  As a general matter, reasonable efforts at rehabilitation should be made prior to initiation of separation proceedings.  As far as a substantial investment in training I had over 70 weeks worth of formal training along with an additional 2 years worth of experience as a nuclear propulsion plant operator.  Then in the matter of reasonable efforts at rehabilitation, there was nothing done to evaluate my ability to be rehabilitated.  After I sorted out my own personal problems and I returned to duty, I was assigned to a master’s at arms group responsible for cleaning office spaces on the sub-base in Groton.  I worked their without a single incident and performed all duties that were required of me for over 5 months.  I know that this is expected as a minimum of every sailor, but for a sailor who is looking at serious consequences for his actions, I think it show a desire to remain in the Navy and be rehabilitated.  That was never even considered.  Moving a little further down the page is line E3.A2.1.l.2.4.  The following factors may be considered on the issue of retention or separation, depending on the circumstances of the case. Line E3.A2.1.1.2.4.2.  The likelihood of continuation or recurrence of the circumstances forming the basis for initiation of separation proceedings.  With 5 months of performing my job without an incident I feel the likelihood of recurrence should have been considered minimal. Line E3.A2.1.1.2.4.3.  The likelihood that the member will be a disruptive or undesirable influence in present of future duty assignments.  Again, I spent 5 months at a duty assignment before my discharge without being disruptive or having any undesirable influence.  I wanted to continue my career in the Navy, not causes additional hurdles for myself.   Line E3.A2.l.l.2.4.4.  The ability of the member to perform duties effectively in the present and in the future, including potential for advancement or leadership.  I was performing my duties effectively in the present, and as I stated in my letter to the discharge review board the only thing that I wanted was to be able to perform the duties that I committed myself to. Line E3.A2.l.l.2.4.5.  The member’s rehabilitative potential.  I was able to be rehabilitated if anyone would have given me the chance.  I will even elaborate further on this later in my statement.  Line E3.A2.1.1.2.4.6.  The member’s entire military record.  This calls out examples in lines E3.A2.1.1.2.4.6.1.1. thru E3.A2.1.l.2.4.6.l.3.  My military record prior to any incidents was that of at least a SAT sailor.  I had received my Good Conduct Medal along with an Admirals’ Letter for my speed of qualifications on board the USS Trepang.  My evaluations were always in the promotable category.  Everything in my record would have pointed to this being an isolated incident.

Now I will go back to E3.A1.1.11.1.1. and go over the circumstances or guideline that was broken to allow myself to be discharge.  After reviewing all guidelines for discharge due to misconduct I do not believe I even remotely meet the guidelines for discharge under any of the guidelines except line E3.Al.1.l1.1.1.1.  Minor Disciplinary Infractions. It states that I could be discharged under this guideline for a patter of misconduct consisting solely of minor disciplinary infractions.  This guideline is further explained in MILPERSMAN 1910-138.  Line 1 of MILPERSMAN 1910-138 is titled Policy and it states members may be processed based upon a series of at least three, but not more than eight, minor violations of the UCMJ provided; and there are five rules that follow.  Rules 1- 4 where followed but rule 5 states that the member has violated a NAVPERS 1070/613, Administrative Remarks counseling/warning.  I have never received nor signed any counseling form such as this the entire time I was in the Navy.
I feel that I should have never been discharged from the Navy.  That was my desire as stated in my letter to the discharge review board.  To this day I still wish I could have completed my obligated military service.  I joined the Navy to meet some of my own personal goals, but I re-enlisted because I enjoyed the work I did and enjoyed being a member of a group with a greater goal.

As I stated earlier in this statement, I feel I need to explain how this was an isolated instance, and if I was given the chance, the remainder of my service would have been completed flawlessly.  I feel I must first explain the circumstances that lead to my errors in judgment.  Then I want to tell how I have learned from those experiences to become a better person today.

I had been married less than a year and already there was a great deal of strain placed on my marriage.  The electrical division was working extremely long hours and my wife was quite upset about an upcoming deployment.  This was putting me under a great deal of stress.  On April, 6 1997 I had duty as the mid-watch SRO aboard my boat.  On top of this I had to support the repair of an R-l 14 unit.  Due to the watch schedule and work I was supporting I was unable to sleep that night.  I worked until noon the following day (April 7th ) and had completed all of my assigned tasks prior to asking my chief if I could go home.  I was told to keep busy for a little while and he would try to get us out of here in a few hours.  At this moment I acted very irresponsibly, and I left the boat.  I was never marked UA for this day, I do not know if I was not missed or if someone covered for me.  The next day I was scared of what was going to happen to me on the boat, as well as with my marriage.  Instead of going to the boat I went to the base chaplain.  I waited there until the late afternoon, but the chaplain never showed up.  Once again, acting very irresponsibly, I left the base and went home.  Later that afternoon two guys from the boat arrived at my house to check on me.  I was able to talk to them, and I went to work the following day.

That day I was sent to the base chaplain to discuss some of the problems I was having.  He recommended that I take some leave.  My leave chit was denied, but there was some miscommunication between me and my chief.  I thought I was able to take off the weekend of April 18th.  Once I returned to the boat on April 21st I was marked UA for this period.  At this point everything started to return to normal until chief L_ submitted his statement about my first UA.  In this statement he stated that he felt I was mentally unstable.  The command responded to this by removing me from the watchbill.  Needless to say, I was now getting a really bad reputation on the boat.  Now my command, my fellow shipmates, and my wife did not seem to like me very well.  I actually ran from all three situations and stayed at a friend’s house for the next couple of weeks.

After hitting rock bottom in my marriage, career, and life I decided to turn it around.  I went back to squadron ready to dedicate myself to the Navy, and finish out my enlistment wherever I was needed.  I was sent to mental health to work on some depression and anger management problem.  I also worked with a counselor to get my marriage back on track.  From that day forward I have never let a momentary emotion make a decision that will affect me the rest of my life.

Today, I am still happily married to the same women.  I have a very good career in the power plant maintenance industry.  I am currently attending college at the University of Phoenix, and I have about one year remaining before I will have my bachelors is business administration.  There is no doubt in my mind, that given the opportunity I could have had the same success in the Navy.  With only one bad evaluation I could have easily finished my term and been discharged honorably.

I will always be glad that I served in the Navy.  I took my job very seriously and always tried to perform to the best of my ability.  To this day I have not forgiven myself for the mistakes I made.  All of the excuses in the world do not satisfy the shame I have for abandoning my military commitment.  Immaturity allowed me to make a rough situation into one that I thought was unbearable.  I hope you can see that according to the guideline I deserved a second chance, even if my actions may not have.  And, if given that second chance, you would not be here, reading a letter from me today.

Thank You

K_ J_ M_ (Applicant)”

Documentation

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

Applicant’s Statement to the Board (3 pages)
Applicant’s Witness Statement, EMC L_, USN, dtd Apr 15, 1997 (2 pages)
Electrical Division Officer Statement for Applicant
Copy of DD Form 214
Character Reference undtd ltr from D_ P. M_ (wife)
Character Reference undtd ltr from LCDR P_ G. H_ (mother-in-law)
Letter of Employment from R_ T_ (supervisor) dtd Jul 24, 2003
Grade Transcript from University of Phoenix dtd Jul 11, 2003 (unofficial, 2 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	920924 - 930721	COG
	Active:   USN			930722 - 951221	HON

Period of Service Under Review:

Date of Enlistment:  951222		Date of Discharge:  971114

Length of Service (years, months, days):

	Active:    01  10  23
	Inactive:  None

Age at Entry:  18			Years Contracted:  6

Education Level:  12			AFQT:  89

Highest Rate:  EM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0 (3)	Behavior:  1.67 (3)		OTA:  2.32

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, GCM

Days of Unauthorized Absence:  37

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630605.

Chronological Listing of Significant Service Events:

970530:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 97MAY20, having been an unauthorized absentee since 1200, 97MAY20 from USS TREPANG (SSN 674).

970605:	Report of Return of Deserter.  Applicant surrendered to military authorities on 97JUN02 (0830) at COMSUBRON TWO.  

970819:	NJP for violation of UCMJ, Article 86 (4 Specs):  Unauthorized absence (97APR8 – 97APR9), (97APR18 – 97APR19), 97APR25-97MAY16), and 97MAY20-97JUN2).
	Award:  Forfeiture of one-half months pay for 1 month, restriction for 15 days, reduction to E-4.  No indication of appeal in the record.

[Admin Discharge Package not contained in service record.]

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19971114 under other than honorable conditions for misconduct due to commission of a serious offense (A).  In the absence of a discharge package, the Board presumed regularity in the conduct of governmental affairs (B) and, after a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, found that the discharge was proper and equitable (C and D).

Issue 1.   The Applicant contends that his problems in the Navy can be attributed to his "long hours" and marriage problems.  While he may feel that his personal problems were the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief on this basis is denied.

When a sailor’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  Characterization of service as general (under honorable conditions) 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 award of nonjudicial punishment (NJP) for violating Article 86 of the Uniform Code of Military Justice (UCMJ) on four occasions, to include an intent to abandon.  Applicant’s actions are considered serious offenses under separation regulations.  As such, the Board determined the discharge proper and equitable and a characterization of service of under other than honorable conditions was warranted.  An upgrade to honorable would be inappropriate.  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.  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.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that his discharge was appropriate and that his evidence of post-service conduct was found not to mitigate the conduct for which he was discharged.  Relief denied.

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted.  There is no evidence of impropriety or inequity in the Applicant’s discharge.  The Applicant’s misconduct is clearly documented.  Therefore, relief is 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 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 14, effective 
03 Oct 96 until 971212, Article 3630605, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

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