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

ex-RMSA, USN 
Docket No. ND03-01438

Applicant’s Request

The application for discharge review was received on 20030905.  The Applicant requests the characterization of service received at the time of discharge be changed to general(under honorable).  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area.  The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040617.  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:

“ISSUE1  Pattern of misconduct not present throughout military career.

 ISSUE2  Reason for unauthorized absence:  Protect investment (automobile).  RMCM G_ would not authorize parking permit.  Drove car home so that it wouldn’t be towed while I was on restriction. Issue 2(expanded)

The pattern of misconduct started during my time on restriction.  One evening, while serving extra duty, I was confronted by Seaman L_, who decided to bully me into working faster so he could go on a smoke break.  I told him that there was no rush and that he could wait for the Master At Arms to relieve us.  From that moment, Seaman L_ and I would continue to be on bad terms.  Every morning, restricted personnel were mustered for inspection.  When the Master At Arms made his way around to me and saw I had some stubble on my face, he ordered me to go and clean up.  I hurried back to berthing to shave.  Needless to say, I held up progress.  However, no one seemed to mind except Seaman L_.  As I returned to my spot on the right side of him, Seaman L_ turned to me with a look of disgust.  Disturbed, I looked at him out of the corner of my eye and asked what he was looking at.  As he turned to answer, he gave me a shove and I retaliated.
Because It was almost two months before I got word of another Captain’s Mast I thought nothing of the incident with Seaman L_ and went about life.  During that time I purchased a vehicle, thinking nothing of the trouble I was in.  Furthermore, the city employed strict parking codes, which enforced towing if vehicles were left unattended for more than three days.  When I received my summons for Captain’s Mast, I assumed the worst in that I would be on restriction to the ship for 30 days or more.  With this in mind, I went to Masster-Chief G_, who was in charge of giving out parking passes.  As I was told by Master Chief G_ herself, the lot was open to all ranks, so long as they had a pass.  Yet, for reasons unknown, Master Chief G_ would not grant me a parking pass.  Instead of getting ready for Captain’s Mast, which was scheduled for the following day, I prepared my vehicle for the trip back to Florida.  I went UA for two reasons; first, to secure the investment I made in the car second, to seek un-biased, psychological counseling to address pending issues with adjusting to military life.  When I returned to the ship, I was apprehended by the Quarter Deck watch and given a Courts-Martial.  I was sentenced to 14 days in the Brig.

 ISSUE3  Not aware that in choosing to leave the navy would result in other than honorable discharge.  Appeal to upgrade discharge was unsuccessful.  Suspect bias: served restrictions duty under one of three judges; a chief boat swains mate.
Issue 3(expanded)

After I my time in the brig I went before the Captain and was given the option either to stay in the Navy or be discharged.  Not knowing what type of discharge I would receive, I chose to leave the Navy, for it seemed to be the best option.  When the separation status came back “Other Than Honorable”, I decided to fight at appeals court.  As specified, I was tried by three judges: a Commander, Lt. Commander, and a Chief Boatswain’s Mate, all of whom I should have had no prior acquaintance.  To my defense, Chief K_ and Chief P_ certified that a General Discharge would be appropriate.  In dispute, Petty Officer H_, who once told me that I should have stayed in the Brig, contested that I should not get a General Discharge.  Moreover, Although I was familiar with one of the judges on the panel, I elected not to say for fear the appeals would drag on.  While I was on restriction, the Chief Boatswain’s Mate selected me for extra duty.  During the evolution, he came up to me and said something in regards to my assignment.  From that moment, no words were exchanged between the Chief Boatswain’s Mate and myself, although, passing him on the hangar deck and in passage ways was a regular occurrence.

Documentation

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

Copy of DD Form 214 (member 4 and 1)
Applicants summary court-martial acknowledgement of rights and waiver (2 pages)
Applicants characterization of separation (2 pages)
Applicants waiver of right to counsel (1 page)
Applicants summary court-martial (2 pages)
Applicants separation by reason of misconduct-pattern of misconduct (2 pages)
Applicants administrative remarks (1 page)
Applicants details from court-martial/separation (1 page)
Applicants cross examination of military evaluations with conditions for general and other than honorable discharge (6 pages)
Applicants events leading up to courts martial (4 pages)
Applicants taxes, entrepreneurial campaigns and credit report (20 pages)
Applicants (naval and civilian), academic/non-academic, job resume and letters of acknowledgement (10 pages)
Letter of commendation from S_ B_, MS, dated July 10, 2003
Character reference from Law Offices of M_ & N_, dated July 9, 2003
Correspondence with Congress pertaining to request for discharge or change of duty stations, evaluations, military psychologist/Civilian psychologists, separations physical (21 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	970211 - 970702	COG
	Active:  None

Period of Service Under Review:

Date of Enlistment:  970703		Date of Discharge:  990920

Length of Service (years, months, days):

	Active:    02  02  13
	Inactive:  None

Age at Entry:  21			Years Contracted:  4 

Education Level:  12			AFQT:  78

Highest Rate:  RMSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.25 (4)	Behavior:  1.75 (4)		OTA:  2.40

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  990506 to 990510

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:

990325:	Retention Warning:  Advised of deficiency (disrespect towards a senior petty officer and failure to obey other lawful order), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

990325:	NJP for violation of UCMJ, Article 91:  Disrespect toward a senior petty officer on 990225, violation of UCMJ, Article 92(2):  Failure to obey other lawful order on 990225.  Failure to obey other lawful order on 990225.
Award: Forfeiture of $100 per month for 1 months, restriction and extra duty for 15 days.

990511:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 86.
	Specification: Unauthorized absence from 990506 at 0800 until 990511 at 0100.
	Charge II: violation of UCMJ, Article 128:
Specification: Assault consummate by battery.
	Finding: to Charge I and II and the specification thereunder, guilty.
	Sentence: Forfeiture of $150 per month for 1 month, confinement for 20 days.
	CA action 990526: Sentence approved and ordered executed except for that portion of the punishment adjudging forfeiture of $150.00 which is suspended for 6 months.

990918:	COMCARGRU TWO directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. 

Parts of Applicant’s discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19990920 under other than honorable conditions for misconduct due to a pattern of misconduct (A).  In the absence of the discharge packate, the Board presumed regularity in the conduct of governmental affairs (B) and, after a thorough review of available records, supporting documents, facts, and circumstances unique to this case, found that the discharge was proper and equitable (C and D).

Issues 1-3:  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a Sailor.  The Applicant’s service record is marred by award of nonjudicial punishment (NJP) and Summary Court-Martial thus substantiating the misconduct.  The Applicant’s summary of service clearly reflects the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, and demonstrated he was unsuitable for further service. An upgrade to general (under honorable conditions) would be inappropriate.  Relief 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.  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, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.   At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.  

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 submDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.DecisionA documentary discharge review was conducted in Washington, D.C. on 20040617.  After a thorough review of the records, supporting documive 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