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

 
ex-MSSR, USN
Docket No. ND03-01444

Applicant’s Request

The application for discharge review was received on 20030903.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  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 20040628.  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/Misconduct - Pattern of Misconduct, authority: NAVMILPERSMAN, Article 3630600.

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PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “IN REFERENCE TO THE LETTER DATED JULY 18,2003 WHERE YOU ARE IN QUESTION AS TO WHAT LEAD UP TO MY DISCHARGE.  I WAS WROTE UP FOR A WRESTLING INCIDENT THAT TOOK PLACE ON USS RICHMOND K TURNER IN 1990, WHERE ABOUT 19 OTHER SAILORS AND MYSELF WOULD GO AND INGAGE IN THIS ACTIVITY.  AT THAT TIME I WAS NOT AWARE THAT WRESTLING WAS NOT PERMITTED ON SHIP, OUT OF THE BUNCH S OF US WERE WRITTEN UP.  ONE SAILOR BY THE LAST NAME OF M_ WHO WAS FROM MARYLAND, ONE SAILOR NAME B_ FROM NEW YORK, ANOTHER INDIVIDUAL NAME R_ WHO WAS AMS1, K_ T_ FROM KENTUCY AND E_ S_ AND MY SELF.
THE SECOND INCIDENT WAS ISRAEL IN 1991WE WERE IN THIS CLUB CALLED WINGS WHILE ON LIBERTY.  I BELIEVE IT STARTED AFTER B_ ACCIDENTLY BUMPED INTO A SAILOR FROM ANOTHER SHIP WHO WAS STATIONED IN PORT AT THE SAME TIME.  THEY GOT INTO FIST FIGHT AND ANOTHER SAILOR BY THE NAME S_ AND OTHERS RESPONED AFTER SEEING SAILORS FROM THE OTHER SHIP JUMP IN.  I GUESS IT WAS FROM ALL THE STRESS THAT HAD BUILT UP FROM BEING AT SEA.
MY LAST INCIDENT TOOK PLACE IN THE KITCHEN 1992 DURING THE MONTH OF JANUARY.  AT THIS TIME I WAS THE NIGHT BAKER WHILE WE WERE OUT TO SEA.  WHEN WE CAME PULLED INTO PORT I WS PUT ON WATCH.  I WAS SURPOSE TO WORK THAT NIGHT TO MAKE DESSERT FOR THE NEXT DAY.  PETTY OFFICER R_ ASKED MS1 J_ IF HE COULD SWITCH WITH ME.  R_ WAS SURPOSE TO WORK THAT MORNING, WHEN I REPORTED TO WORK PETTY OFFICER R_ DID NOT SHOWED UP THAT MORNING.  THE NEW WATCH CAPTAIN WAS UPSET AT ME BECAUSE R_ DID NOT SHOW UP AND HE HEARD THAT I WAS SURPOSE TO BE ON HIS WATCH.   WHEN R_ DID SHOW UP HE ACTED AS IF HE DID NOT KNOW WE WERE TALKING ABOUT.  IT WAS THEN THAT THE WATCH CAPTAIN STATED HE WAS GOING TO WRITE ME UP AND I RESPONED WITH THE WORDS FINE, GO AHEAD.  I THEN LEFT THE AREA AND PROCEEDED TO PREPARE DINNER THE MESS CRANK WAS IN THE PROCESS OF GIVING 3 TO 4 COOKIERS PER PERSON, WHEN RULES ARE THAT THEY ARE TO RECEIVE 2.  WHEN I SPOKE TO HIM ABOUT THIS AND THE FACT THAT WE WILL RUN OUT OF COOKIES, THE WATCH CAPTAIN TOLD HIM TO CONTINUE.  I THEN STATED THAT I WOULD NOT BE BAKING ANY MORE COOKIES AND AN ARGUMENT STARTED BETWEEN ME AND THE WATCH CAPTAIN.
HE TOLD ME THAT HE WAS GOING TO WRITE ME UP AGAIN AND AT THAT TIME I WENT AND GOT MY CLOTHES AND LEFT FOR 11 DAYS.  I THEN RETURNED BACK ON MY OWN, AND WAS PLACED ON RESTRICTION FOR 45 DAYS.  I WAS TOLD TO REPORT CAPTAIN MASS AND HE INFORMED ME THAT BECAUSE I HAD BEEN WRITTEN UP 3 TIMES AND THAT IT SHOWS A PATTERN OF MISCONDUCT AND HE RECOMMEND THAT I BE DISCHARGED UNDER THAN HONORABLE CONDITIONS.
BEFORE THIS NEW CAPTAIN CAME ON BOARD AND WE HAD THE OLD CAPTAIN L_ WE WERE NOT AWARE OF SOME THE THINGS AND CHARGES THAT WE WERE GIVEN.  UNDER THE OLD EXECUTIVE OFFICER WHEN WE WOULD WRESTLE NOTHING WAS SAID, I FEEL THAT ALL THESE CHARGES AGAINST ME CAME AFTER THE CHANGING OF COMMAND.
WHEN I JOINED THE NAVY I JOINED TO MAKE IT A CAREER, I SERVED IN THE GULF WAR AND HAVE RECEIVED 2 BRONZE STARS AND NUMEROUS OTHER METALS.  IF MY ACTIONS WERE LESS THAN THAT OF A SAILOR WOULD I HAVE RECEIVED THESE AWARDS.  I AM ASKING AT THIS TIME THAT THESE MINOR INFRACTIONS NOT BE HELD AGAINST ME, AND THAT I BE ALLOWED TO SEEK MEDICAL ATTENTION FOR THE NIGHT MARES AND FLASHBACK THAT I INCURE TWO TO THREE TIMES A WEEK.  I ALSO HAVE DAYS WHEN I FEEL DEPRESSED BECAUSE I CANNOT GET THE MEDICAL HELP I NEED FOR MY SITUATION.
SHOULD YOU NEED ANY OTHER INFORMATION PERTAINING TO THE THINGS THAT LEAD UP TO MY DISCHARGE PLEASE FEEL FREE TO CONTACT ME AT THE ADDRESS OR TELEPHONE LISTED BELOW.

S_ L_ (Applicant)
(Applicant's address deleted)
(Applicant's telephone number deleted)”

Documentation

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

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	881213 - 890625	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  890626		Date of Discharge:  920327

Length of Service (years, months, days):

	Active:    02  09  02	Does not exclude lost time
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  32/46

Highest Rate:  MSSA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.40 (2)	Behavior:  3.40 (2)		OTA:  3.40

Military Decorations:  None

Unit/Campaign/Service Awards:  SASM with 2 Bronze Stars, SSDR, NDSM, MUC, BER, KLM

Days of Unauthorized Absence:  11

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Pattern of misconduct, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

900821:	Retention Warning from USS RICHMOND K. TURNER (CG-20):  Advised of deficiency (Misconduct – alcohol incident number 1.  Alcohol abuse.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

901019:	NJP for violation of UCMJ, Article 91: Insubordinate conduct toward a petty officer, violation of UCMJ, Article 92: Failure to obey a lawful order.
	Award: Restriction and extra duty for 45 days, reduction to MSSR.  No indication of appeal in the record.

910611:	NJP for violation of UCMJ, Article 89: Disrespect.
	Award: Forfeiture of $50 per month for 1 month.  No indication of appeal in the record.

910821:	Dependency evaluation: Assessment: Applicant found not dependent on alcohol.  Recommendation: Level II: CAAC.

910927:	Retention Warning from USS RICHMOND K. TURNER (CG-20):  Advised of deficiency (Misconduct due to alcohol incident #2.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

911031:	Retention Warning from USS RICHMOND K. TURNER (CG-20):  Advised of deficiency (Disrespect.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

911202:	Applicant missed ship’s movement.

920113:	Applicant to unauthorized absence on 0700, 920113.

920124:	Applicant from unauthorized absence on 0530, 920124 (11 days/surrendered).

920125:	NJP for violation of UCMJ, Article 86: Unauthorized absence.
	Award: Forfeiture of $100 per month for 2 months, restriction and extra duty for 45 days, reduction to MSSR.  No indication of appeal in the record.

920225:	USS RICHMOND K. TURNER (CG 20) notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by several violations of the UCMJ during your current enlistment.

920225:	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.

920225:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

920317:	BUPERS 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 19920327 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 available 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 non-judicial punishment (NJP) on 3 occasions for violations of the Uniform Code of Military Justice (UCMJ) to include articles 86, 89, 91 and 92.  An upgrade to general (under honorable conditions) would be inappropriate.  Relief is therefore 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 additional documentation to support any claims of post-service accomplishments or any other evidence relating 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, effective 15 Aug 91 until 
04 Mar 93), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – A 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