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

 ex-SR, USN
Docket No. ND04-00612

Applicant’s Request

The application for discharge review was received on 20040303.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041001.  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.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “To Whom It May Concern:

Hi my name is R_ E_ F_ (Applicant).  I had enlisted in the military United States Navy in the year of August of 1992.  In that year I was seventeen and easily persuaded to join the military!  As I went along with my eductation, I was coherent to what life would be like in the military.  I was told by the recruiter that there would be a lot of drinking, parties, and fun under the sun.  He also told me that what I had to offer; in which I was a Culinary Arts graduate.  He felt it apparent to inform me that the trade I worked so hard to succeed in was not a seamanship that I would adore in the U.S. Navy.  As a matter of fact he went into detail informing me of ships movement.  He also informed me that my treasured growth would not sustain a life I would like to lead, while serving my country.  In the end of all this he kind of made my mind up, and I mistakenly followed his order.  I got Other Than Honorable discharged.

My enlistment turned into a farce.  I took the military serious, and because I was at the age of 17 I am writing to ask for you to undo this bondage.  I was young and the recruiter made a deal with me, that cost me my life.  He made me think that rank would be far below life and at the age of seventeen I really wanted to have fun under the sun.  I agreed and it cost me a rank of E-2, and later a positive career.  I signed up as a Boatswain Mate.

I cared o.k! And why didn’t my career pan out? Well because of those very reasons.  When I worked I worked hard I slaved, and when I partied I partied hard.  No disrespect, no drug use, I was young and I loved it.  But for some reason because I didn’t have a rate my life would crumble in an instant.  People really didn’t want to get along with me especially homosexual servicemen.  They would get in my way when I tried to work, they would spit foul language at me, and we get into fights.  Never went to Captain’s Mast for it.  But this had exposed a side I never would have imagined that fun in the sun my recruiter was talking about, that’s what got me in trouble.  I’m sorry but their would be different times I thought I was doing nothing wrong at all and someone would find something wrong with my bunk.  Like this one time I had came in from Hawaii (it wasn’t like I was going off to self-destruct) people from off the ship where pointing me in different places, you can’t believe how I feel so I ended up thinking I was getting a souvenir, but what they told me is that what I had was against military policy (I swear I didn’t know it) it was an ID.  I had got made saying I was from Hawaii and at a legal age.  At my age I didn’t know nothing, but someone felt that I seamen recruit R_ F_ (Applicant) had observed every code the military had.  I didn’t, you let homosexuals jump on me.  And told me to give it a rest, but know I bring plastic on the boat and you slap me with fines, Captain’s Mast and all out treated me like a criminal!  Yes, that was one of three.  The second and third time I was just tired of being messed with.  Can you be, as too be honorable, grant me an Honorable Discharge.  PLEASE.”

THANK-YOU
R_ E_ F_ (Applicant)
D.O.B.1O/09/1974 Social Security (deleted)”

Documentation

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

College transcript from Owens State Community College, dated February 13, 2004 (Reflects GED October 1, 1992)
Letter of Academic Excellence from P_ V_ U_, Ph.D. Provost, Owens Community College, dated December 20, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	920625 - 930103	COG
	Active:   USN 			None			HON

Period of Service Under Review:

Date of Enlistment:  930104		Date of Discharge:  940122

Length of Service (years, months, days):

	Active:    01  00  19
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  8 			AFQT:  34

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA*		Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  None

*No marks assigned

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:

930629:	NJP for violation of UCMJ, Article 117:  Provoking speeches and gestures, violation of UCMJ, Article 134: False or unauthorized pass offenses.
	Award: Forfeiture of $300.00 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

930630:	Retention Warning from USS WADSWORTH:  Advised of deficiency (Provoking speeches and gestures, false or unauthorized pass offenses), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

931124:	NJP for violation of UCMJ, Article 86:  Absence without leave; violation of UCMJ, Article 92: Violating or failing to obey any lawful order; violation of UCMJ, Article 113 (3 Specs): Misbehavior of sentinel or lookout.
	Award: Forfeiture of $100.00 per month for 2 months, restriction and extra duty for 15 days, reduction to E-1 (suspended for 3 months).  No indication of appeal in the record.

931217:	NJP for violation of UCMJ, Article 86:  Absence without leave, violation of UCMJ, Article 91: Striking or otherwise assaulting, while in the execution of his office, violation of UCMJ, Article 92: Violating or failing to obey any lawful general order or regulation.
Award: Forfeiture of $100.00 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

931222:	USS WADSWORTH notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct (Three NJP’s within the current enlistment) and commission of a serious offense (Violation of UCMJ Articles 91, 92, 113, 117, 134).

940107:	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.

940111:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense (Violation of UCMJ Articles 91, 92, 113, 117, 134) and pattern of misconduct (Three NJP’s in the current enlistment).  Commanding Officer’s comments:  SR F_ (Applicant) has been extremely inconsistent since reporting on board in April of last year.  His performance has been highlighted by instances of blatant disrespect and disregard for authority.  His disobedience of senior petty officers and his division officer has been a recurring problem documented through counseling sessions and finally culminating in non-judicial punishment.  Most significantly, SR F_ (Applicant) committed an extremely serious and potentially dangerous series of offenses in early November on the first underway day of TSTA II.  During his watch as Helmsman, SR F_ (Applicant) fell asleep and did not respond to the orders of the Conning Officer.  After counseling occurred and a report chit was initiated SR F_ (Applicant) fell asleep at the helm again the next day.  Several days later, he fell asleep a third time as helmsman.  Allowing the ship to drift several degrees off its ordered course.  SR F_ (Applicant) actions were immeasurably hazardous and endangered the lives of all those on board as well as those of personnel aboard other vessels in the vicinity of the WADSWORTH.  In December, SR F_ (Applicant) was willfully disobedient to two Petty Officers and his division Officer by refusing to leave his rack during working hours to join his division for a routine work detail.  This offense was the definitive end of a concerted effort by SR F_ (Applicant)’s chain of command to help him succeed as a sailor and further his naval career.  SR F_ (Applicant) has been the source of countless counseling sessions for his lack of initiative and dedication as well as his immaturity and irresponsible attitude.  His mere presence now represents an administrative burden to the USS WADSWORTH and the Navy.  His wantonly reckless behavior is inconsistent with the mission of the WADSWORTH and he presents a potential danger to both himself and the crew.  For these reasons SR F_ (Applicant) should be separated at the earliest opportunity and the nature of that separation should be under other than honorable.

940121:	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 19940122 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:  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) on three separate occasions for violating UCMJ, Articles 91, 92, 113, 117 and 134 thus substantiating the misconduct.  While he may feel that his youth and fellow shipmates were contributing factors, they do not mitigate 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 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 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 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