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

  ex-FA, USNR
Docket No. ND04-00154

Applicant’s Request

The application for discharge review was received on 20031104.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to “see issues attached.”  The Applicant requests a documentary record review.  The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter the applicant was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington DC area.  The Applicant did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040720.  After a thorough review of the 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: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1.  I was 10 ½ months away from completing my active service.  None of the four (4) misconducts I was found guilty of were damaging the service – except for my 46 day absence.  Aside from that  there wasn’t any disrespect or criminal activity.

My first offense, while assigned to N.T.C. San Diego - Apprentice Training - I had one (1) incident of public intox. (while on liberty), and it did not affect my duties.

My second offense was underage drinking - which I was not intoxicated… I knew enough not to get drunk with work the next day.  But, because I had alcohol on my breath… I was at fault.  This did not affect my duties.

My third offense was a 46 day A.W.O.L. - which affected my presense to perform my duties.  However - the reason was of such a personal nature… I was compelled to resolve that problem.  This is the only misconduct I will humbly accept.  A detailed explanation will be submitted on attachment.

My fourth misconduct was leaving my post after I secured my area to a point of 90% stasis, still under control.  I was out of the space for five minutes… I was completely aware of my responsibilities.  No danger would have became of my conduct.

First Offence: was public intox. While on liberty while assigned to the N.T.C. SANDIEGO.  Simply stated, I got drunk and fell asleep on the beach at Mission Beach.  The shore patroll brought me back to the base.  I did not have duty the following day.  No other incidents occurred during my assignment to the N.T.C. in San Diego, and I successfully competed the firemans apprentice training course.  My DD-214 reflects no military education; when I completed the apprentice course, the basic military req. course and the machinist mate 3 & 2 course.  I do not have my education file to support this here - but it true.

My second offence:  was underage drinking - which was only that, and not a disruptive incident.   I was out with some shipmates socializing when one of the guys I was with got drunk and caried away.  The group I was with decided to take him back to the ship.  On the way back, this drunken associate of ours vomits on the driver of the car.  The car swerved, and shore patrol pulled us over.  I was 18 at the time with less that a year in.  I was not drunk.  I lost pay and pay grade and had to take anabuse.  I knew how to conduct myself, and I took this to be excessively unnecessary. Had the master at arms simply handed me my I.D. back and advised that I watch who I associate with - this misconduct would not have existed.  This misconduct went on record as a disruption to my conduct…
But it did not affect my duties no matter who looks at it.  

My third offence: was a year later.  After returning from the 88-89 MED-CRUISE, I took leave - to discover that my fiancée had been obducted…in a date - rape situation.  I extended my leave on my own accord to find the person responsible.  After doing so, I returned to the ship I was dropped in pay and pay grade and spent 30 days in the C.C.U..  This is the only misconduct that I can claim full and personal accountability for.  I paid for it and went about my business.  Aside from my absence, my on duty behavior was normal.

My fourth offence:  Followed a devastating situation.  My fiancée  suffered an anurism and became comatose.  This was in August of 1989. Yes I drank a little more, but, again, my on duty performance was not affected.  I was contacted by the Red Cross of my fiancées; condition.  
In September of 1989 - I was opperating an aircraft deck edge elevator (on the USS JOHN F. KENNEDY - where I was assigned). We were in port.  The operation was routine.  The air man o the flight deck said that he was finished but may drop the elevator once more to secure.  I informed the air man that I hadn’t eaten in 18 hour since my dutys for that day started - and I was going to step out to get some food.  The gally was fifty feet (50’-0”) from the elevator machinery space… and I was gone for a total of five minutes.  The elevator did drop while I was out…  And I sawas much by the retracted ram on the upper deck of the machinery space.  Fine.  I went down stairs of the space to “pump over”  (as the retracted ram dumped the hydraulic fluid to the L.P. tank… “pumping over” to prepare for the elevator lift was normal).  However, Petty Officer R___ was there opperating the pump.  Because this was an in-port routine eveloution,  I was casual about it.  The air man said that he’d drop the elevator and secure.  Fine, I got some food.  It was a long day, and I hadn’t eaten yet.  No harm could have became of this episode.  Had something gone wrong; I would have caught it.  Mr R____ must have been in the space socializing with the electricians in EL. space# 4 where this incident took place.  Because of the current events of my financee’ in critical but stable conditions - and not being able to get leave - and this lack of compassion on the part of my superiors - I opted to accept what they threw at me and to resigne.  Perhaps with leave and some counseling, I would have made it.  
After the A.W.O.L. misconduct, I suffered an intense series of badgering, chastising and punative duites that took a heavy toll on me.  Yet, I completed my task and maintained my composure.  The incident with Petty Officer R___ could have been an off shoot from the numerous duties he supervised me on - which were punative and disciplinary. While the rest of the shop performed normal duties; P.O. R____ was assigned to supervise a cleaning detail to which I was sent.  From mid-May ‘89 to August ’89 - this occurred 3 or 4 days a week.  
I have never been guilty of gun decking or insubordination.  I was twenty (20) years old at the time of this last misconduct.  The discharge, (OTH), degraded my career, my goals and my lifes ambition.  Returning home to rebuild my life was almost impossible.  Job applications were summarily dismissed with the presence of an OTH associated with military service.  
Alcohol was a problem. But only because my efforts were dashed without opportunity to seek redemption.  And a year and a half after my discharge - my brother was assaulted in my home and I killed the assailant.  I was found guilty of 1st degree murder and sentenced to a life imprisonment.  For further details reguarding the Pennsylvania criminal prosecution see :  648A2d563 (com. of PA vs Sheppard)(1994) another incident that went the wrong way.  My prison identification number is BS-5732  must appear on all correspondences

My goal to upgrade my discharge is 3 fold: 
1.  To simply reinstate my service acknowledgement to Honorable for which it truly was.

2.  To be eligible for an education grant to increase my productivity upon release from prison -

3.  To be eligible for a home-loan-to have a home when I get released from prison.

 If my conduct and behavior are suitable to the Pennsylvanian government - I may be released under clemency.  Having some options to put my life together in such an event would be extremely helpfull and promotional to my success.  
It may be stipulated that my request lay suspended untill such time when clemency is deliberated for my freedom.  An actual documentation is necessary to show the review board that I do indeed have a tangible asset to build a foundation upon.

My life is in your hands and in the hand of the Pennsylvania governor.  Surely you’ll find that there is something left in me worth something to the citizens of America - and to myself.  The address on this application is my mothers home.  I am presently incarcerated at S.C.I. Graterford P O Box 244 – Graterford, PA - 19426.
A Lot of bad things have happened.  But I am alive and well, and sincerely in pursuit of redemption.  Respectfully Submitted. 
                   
Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	None
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  870608		Date of Discharge:  891003

Length of Service (years, months, days):

	Active:    02  01  09
	Inactive:  00  01  01

Age at Entry:  18			Years Contracted:  8

Education Level:  09			AFQT:  50

Highest Rate:  FN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.90 (2)	Behavior:  2.80 (2)		OTA:  3.00

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR

Days of Unauthorized Absence:  45

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:

870709:	Ordered to active duty for 36 months under the Active Mariner program.

880107:	Retention Warning from [USS JOHN F. KENNEDY (CV-67)]:  Advised of deficiency (Misconduct as evidenced by your Captain’s Mast on 880107, for violation of UCMJ, Article 134: Drinking an alcoholic beverage while under the legal age 21.  Should your misconduct continue you will create an adverse pattern of misconduct which cannot be tolerated), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

880107:	NJP for violation of UCMJ, Article 134: Drinking an alcoholic beverage while under the legal age.
Award: 30 days restriction (25 days suspended for 6 months).  No indication of appeal in the record.

880519:	NJP for violation of UCMJ, Article 91: Willful disobedience of warrant, noncommissioned, or petty officer.
	Award: Forfeiture of $100.00 pay per month for 1 month(suspended until 26 May), 7 days CCU (suspended until 26 May).  No indication of appeal in the record.

890320:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 890317 having been an unauthorized absentee since 0630, 890217 from USS JOHN F. KENNEDY (CV-67).

890403:	Surrendered at PSD but failed to execute TAO orders and remained in desertion.

890406:	Report of Return of Deserter.  Applicant apprehended by civil authorities on 890405 (0630) at Verona, PA.  Returned to military control 890405 (0630).  Retained pending transfer to NACU Norfolk, VA FFT USS JOHN F. KENNEDY (CV-67) FORDU.

890425:	NJP for violation of UCMJ, Article 86: UA from unit 890217-890405(45 days; UA from restricted men’s muster 8 times between 890413 to 890418, violation of UCMJ, Article 92: Failed to obey order not to smoke in berthing compartment; dereliction of duties by not observing proper securing procedures.
Award:  CCU for 30 days, forfeiture of $390.00 pay per month for 2 months, reduction to E-2.  No indication of appeal in the record.

890829:	NJP for violation of UCMJ, Article 86: UA from appointed place of duty on or about 890814, violation of UCMJ, Article 107: On or about 890822, made false entries into official log.
Award:  Forfeiture of $100.00 pay per month for 1 month, restriction for 30 days.  No indication of appeal in the record.

890830:	USS JOHN F. KENNEDY (CV-67) notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

890901:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

890913:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

890925:	CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

*Complete discharge package not available in records

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19891003 under other than honorable conditions for misconduct due to a pattern of misconduct (A).  In the absence of a complete discharge package, 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.   The Applicant contends that aside from his 46 days in unauthorized absence, none of his misconduct was damaging to the service and his service should be characterized honorable.  When the service of a member of U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  An Under Other Than Honorable Conditions discharge 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 four nonjudicial punishment proceedings for 15 violations of the UCMJ to include violations of Article 86, unauthorized absence, Article 91, willful disobedience of warrant, noncommissioned or petty officer, Article 92, failure to obey an order, Article 107, for making false entries into a log and Article 134 for drinking an alcoholic beverage while underage.  Article 86 violations include one episode of 45 days unauthorized absence ended by apprehension and missing restricted muster eight times in six days.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant contends that his problems in the Navy can be attributed to his family problems.  While he may feel that his family 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.

The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  

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 15560A, Change 8 effective 21 Aug 89 until 14 Aug 91), 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