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

 ex-AOAN, USN
Docket No. ND04-00172

Applicant’s Request

The application for discharge review was received on 20031107.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable or 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 20040728.  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 3630600.  Discharged in absentia.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “This OTH discharge in unjust because I was dealing with very special circumstances.”

2.  “To Whom It May Concern,

Good judgment comes from experience, and experience comes from bad judgment.

With that as a baseline, I have a lot of experience.  And yes indeed, that experience came from bad judgment.  However, the education I received throughout this experience has given me the skills to have the good judgment mentioned above.  Allow me to explain...

My girlfriend N_ and I had a long-standing record of instability with our relationship prior to our marriage and my entry into the service.  In fact, we were separated and living apart until I found out she was pregnant in the summer of 1989.  I wanted to do the right thing and immediately moved back home with my parents and moved N_ in with me.

I joined the military that winter (DEC 1989) while living at home with my parents, N_, and newborn son N_ in Memphis, TN.  A couple of days after that Christmas, I left for USN Basic Training in San Diego, CA.

I returned to NAS Millington, TN 12 weeks later to attend AO-A1 School for 10 1/2 weeks.  While in A-School, I lived at my permanent residence in Memphis.  I married N_ at the completion of school, and received orders to VAQ-129 on Whidbey Island, WA.

When N_, N_, and I arrived in Oak Harbor (Whidbey Island) we had to stay at a friend’s place for several weeks, as there was not enough military housing in place.  The rent and cost of living was much higher than we were used to in Tennessee.  This instantly took a toll on the effectiveness of our moving plan and our ability to perform as responsible parents and adults.  I was 21 and my wife 20.

In addition, as we arrived in Oak Harbor, we had car troubles that cost several hundred dollars to repair.  Nonetheless, we eventually moved into an apartment.  However the rent was very high and there was zero income other than the Navy.

During my tour with VAQ-129, N_ and I made some very poor decisions with our money. We purchased things out of want instead of need.  I have to admit now that the moment I recognized this was an epiphany and the beginning of a turning point for me.

It was obvious we both shared a desire for lifestyles above and beyond our financial capabilities.  Before too long, we had bounced checks, owed fees to banks, had late credit payments if there were payments at all, and phone calls were pouring into my command about my debt.

The married home life was broken within the first year on station.  My wife and I had numerous arguments, often resulting with me staying at the barracks to avoid possibility of any domestic violence situations.  N_ did not work despite our obvious financial situation and my repeated requests for her to get employment.  She became increasingly dominant, accusing me of “dragging her and our son out to Washington”, etc.  The fights continued throughout my tour at VAQ-129.  Again, recognizing there were serious problems at home, I moved back into the barracks permanently.  I did this not so much to do the right thing, but to keep myself from doing the wrong thing.

As these things were occurring, I worked with my Command Master Chief to take the appropriate actions.  They sent me to debt counselors, who in some cases said I should get out of the Navy and repair my finances.  Other counselors offered plans and budgets that were somewhat unrealistic, given the dynamics of my personal situation.  They all were trying to help, but to no avail.

During this time, I also made the decision to send N_ to my mother’s home in Memphis to protect him from the unstable situation with N_.  My wife soon followed to Memphis.  At the direction of my command, I allotted 50% of my pay to be deducted and distributed to her while we were apart but still married.

I had begun volunteering my weekend time to the Naval Hospital in an effort to cross-rate to Hospital Corpsman.  I completed the books for the rate change, and obtained two letters of recommendation from a Captain and a Lieutenant who was actually an instructor at the HS school at one time.  Unfortunately for me, the Navy decided that they needed an AO more than another Corpsman.

I had originally accepted orders to VAQ-129, and had an EAOS date of Sept93.  However, I extended for two years to accept orders to VAQ-30.  As I reported to my new command, I took the same problems with me.  Collectors were still calling, bills were not getting paid, and I was living on very little money due to the allotment for 50% of my pay.  I performed my duties with excellence.  However, my personal matters were spilling into my new command and seriously affecting my military career.  I began volunteering to for detachments to San Diego and Texas in an effort to escape the local situation and stress of these things.

My wife eventually came back to visit, and decided to stay and work things out with me while N_ stayed with my mother in Memphis.  I tried yet again to do what was best for my family. I rented an apartment, got a part-time job, N_ got a job, and then it all started over.  The arguments and fighting continued.  It was at this time I found out that N_ revealed that she had taken a job as a topless dancer at a club in Everett.  This posed many moral problems for me.

VAQ-30 received orders to decommission the squadron, and I was provided orders to the USS Kitty Hawk. I was concerned that I had just added two years to my enlistment, but did not get to finish my original EAOS before I was being ordered elsewhere again, not getting to finish the extension that I agreed to for orders to VAQ-30.

It was at this time that I decided to request Captain’s Mast and begin the investigation for a discharge.  I had no desire to go to a ship, leaving my unresolved problems, child, and wife.  I did not want to be married to N_, stuck on a ship, and her receiving 50% of my pay.  I met with legal and the CO, and then at mast.  They agreed to discharge me upon my request, but with an OTH instead of General.  I was disappointed, but accepted the CO’s decision. I wish I could go back to this point in my life and renegotiate.

The legal officer had told me the paperwork would be prepared in a few weeks.  I asked what would happen if I left...he said they would discharge me in absenteeism, marked as AWOL, and they would mail the papers to my permanent address.  Understanding the circumstances, I made the decision to go ahead and with my plans to leave the Navy early.  With my next paycheck, I repaired the car that had now been broken for several months and N_ and I traveled back to Memphis, where my son already was.

After returning to Memphis in Sept 1993, I put as much distance between my wife and I as possible.  She stayed with my parents and son as I stayed with my sister’s ex-husband and got a job.  Later I moved to North Carolina, then New Orleans, and then to Bellingham, Washington where I got a job in the Internet and graphic design industry.  I also held odd jobs such as maintenance roles at the apartments I lived in, and designing marketing materials for small local businesses.  Eventually I landed a full-time job at Computer Innovations in Mt. Vernon as a Web Designer.  Here I learned to write code deal with customers, and to manage projects.

A couple of years later I moved to Seattle to work on LiveBid.com, a project that was later purchased by Amazon, Inc.  From here I took a contracted position at Microsoft as a developer.  I worked at Microsoft for over a year before being recruited by Getty Images, Inc.

I have been at Getty Images since August of 1999.  Since this time I have rebuilt my relationships with my son’s mom, family, and most importantly my son.  He began visiting me in the summer times, and will be moving in with me this May to live permanently in Seattle.

In 1998 I finally got my divorce, after being apart for many years.  I also repaired my credit and resolved all issues of debt that affected my previous enlistment.  Today I’m confident that my finances are being managed well and correctly.  I now have my own car and motorcycle, financed in my own name without cosigners, and I live in a nice residence and neighborhood where I am the sole provider for my son.  I am a responsible, contributing member of my neighborhood, school system, and professional workplace.

Last year, I became certified as a Professional Rescuer at the Red Cross.  This year I continued my quest for self-improvement and attended professional training in Unarmed Self Defense, General Defensive Handgun, and Close Quarters Confrontations with the Insights Training Center.

My past performance evaluations at Getty have been outstanding.  I have been awarded stock, cash bonuses, raises, and promotions.  I have also attended several work related training events and classes for project management and resource management.  These days at work I’m responsible for several daily events that are critical to company successes.  I manage a team of four and sometimes five highly capable and certified engineers.  I contribute at an organizational level, and ensure that my team meets customer expectations and project timelines.

The military was a great step for me as a young person.  Unfortunately, I missed a lot of opportunities and brought unwanted burden to my command as I tried to manage my marriage and finances without the best skill set for such.  However, I have learned from these mistakes and decisions, repaired and rebuilt my life and career, and desire very much to continue my education and contributions to family and society.

Please, I ask for favorable consideration to upgrade my discharge from the Navy to an Honorable Discharge or General Discharge Under Honorable Conditions.

Most Respectfully,

J_ W_ G_, Jr. (Applicant)”

Documentation

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

Applicant’s DD Form 214
Four pages from Applicant’s service record
Decree of dissolution, dated 981106
Letter from Navy Exchange Service Command, dated April 5, 1999
Character reference, dated June 18, 2002
Character reference, dated November 12, 2000
Performance Review Form, dated October 21, 2001
Letter from Applicant, dated June 25, 2004
Student Transcript Report, dated June 28, 2004
Enlistment contract, dated July 18, 2003
Memorandum, dated March 21, 1991
Memorandum, dated March 20, 1991
Certificate of achievement, dated May 8-9, 2004
Certificate of achievement, dated January 24, 2004
Certificate of achievement, dated March 14-16, 2003
Certificate of achievement, dated October 12, 2003
Certificate of achievement, dated December 3, 2003
Certificate of achievement, dated May 17-18, 2003
Certificate of achievement, dated November 8-9, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	891026 - 891227	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  891228		Date of Discharge:  930827

Length of Service (years, months, days):

	Active:    03  08  00	[Does not exclude lost time]
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 (10 month extension)

Education Level:  12			AFQT:  51

Highest Rate:  AOAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.33 (6)	Behavior:  3.40 (6)		OTA:  3.50

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  32

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

910329:	NJP for violation of UCMJ, Article 92: Willfully disobeying a lawful order on 910313.
	Award: Reduction AOAN.  Reduction suspended for 4 months.  No indication of appeal in the record.

910329:	Retention Warning from Tacelron One Two Nine, NAS Whidbey Island, Oak Harbor: Advised of deficiency (CO’s NJP of 910329 for violation if UCMJ Article 92.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

930520:	Retention Warning from Tactical Electronic Warfare Squadron 35:  Advised of deficiency (A set pattern of failure to pay just debts.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

930719:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

930720:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by violation of the Uniform Code of Military Justice Article 92 Disobeying a lawful order and a set pattern of failure to pay just debts and a set pattern of failure to pay just debts.

930720:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and a set pattern of failure to pay just debts.

930725:	Applicant to unauthorized absence 1200, 930725.

930806:	Message from BUPERS requesting how Applicant’ violated the 930520 counseling/warning.

930812:	Written on message from BUPERS dated 930806: Failed to obey verbal order from CO issued on 930520 to contact creditors and arrange payment plan.  Command still receiving complaints from creditors.

930817:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  Discharge in absentia.

930827:	Applicant from unauthorized absence 0700, 930827 (32 days).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged, in absentia, on 19930827 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 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 nonjudicial punishment proceedings for a violation Article 92, failure to obey an order of the UCMJ.  In addition, the Applicant went on unauthorized absence for 32 days after being notified of separation proceedings.  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.

Issue 2.  The Applicant contends that his problems in the Navy can be attributed to his "very special circumstances" and stress caused by financial problems.  While he may feel that his situation was 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 denied.

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural error or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no such errors after a review of Applicant’s case.  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.  As of this time, the Applicant has not provided sufficient documentation for the Board to consider.  Relief 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 5, effective 05 Mar 93 until 21 Jul 94), 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