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

 ex-DCFR, USNR(TAR)
Docket No. ND04-00971

Applicant’s Request

The application for discharge review was received on 20040527.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance discharge review before a traveling panel closest to SACRAMENTO, CALIFORNIA.  The Applicant listed a civilian counsel as the 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 20041112.  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 voted 3 to 2 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).  Discharged in absentia.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“DECLARATION

I, J_ T_ (Applicant), hereby declare the following to be true:

I entered the naval reserve on October 25, 1995.  For a period of about seven months I was on reserve duty.  I went on active duty on May 1, 1996, at Recruit Training Command, Great Lakes, Illinois for eight weeks of basic training.  I graduated on July 4, 1996, from division 264.  From there I went to the Naval Training Center, Great Lakes, Illinois, for training at the engineering systems school.  I was in Engineering Corps Class No. 96104 and graduated August 2, 1996.  On August 9, 1996, I was sent to the Naval Technical Training Center at Treasure Island, San Francisco, California to attend damage control A School.  I became a class leader and also held an 83.43 grade point average.  I was ranked eighth out of twenty and was second in the class as a reservist.  I graduated A school on October 11, 1996. After my training, I received orders to the USS Clark, FEC-11, Norfolk, Virginia.  I reported to the ship on November 8, 1996.  I was assigned to repair division as a Damage Controlman.  I then started to get my “quals” for the upcoming January of 1997 four-month deployment.
I was also getting ready to have hernia surgery for an injury I had incurred while lifting halon bottles on the USS Clark.  I had the surgery done in December of 1996 and was back on light duty in time to make the cruise in January.  I seemed to be healing well.  While on the cruise, we did anti-drug ops with the U.S. Coast Guard. We busted a shipment of 1,150 lbs. of drugs and more were found later on the same ship.  My ship returned in early May of 1997. The ship went on stand down and I went on leave for a few weeks.  After the stand—down was over, the ship went through a series of inspections.  The ship’s engineering department went through a series of engineering recertifications.  During this time, the ship’s crew had to pass a series of drills.  Also, the ship’s engineering department had to pass a series of engineering casualty control drills which included the duty section fire parties, the at-sea fire party, damage control abilities, and the engineering watch standers.  During an engineering fire drill, I was required to lift a hatch on one of the ship’s gas turbines.  I got another hernia on the right side while performing this lifting.  Over the next six to eight weeks, this hernia continued to get worse.  My Command was not supportive in helping me to get this fixed.  After many doctor examinations, on November 19, 1997, I was scheduled for a second hernia operation.  This time it took a little longer for me to heal.  I was not back to full duty for a while. My ship was in port getting repaired and ready to deploy during the middle of 1998.  At this time my hernia popped out again.  I got very little help from my Command or the ship’s corpsmen.  The ship left for about a month and I had to stay behind for a doctor’s appointment.  The first doctor I saw found where the hernia had popped out.  At this time, with me in great pain, he managed to push it back in.  He then sent me home.  He canceled the follow up with the doctor who was to fix it. In the end I was told that I didn’t really need another surgery.  I left and went to California to Edwards Air Force Base to see if they could help me since my Command would not.  I was told to go back to my Command.  I was told that I was being sent to Captain’s mast for not seeing the surgeon.  This did not seem to make sense, since the doctor I had seen who pushed the hernia back in had canceled my appointment with the surgeon.  In fact, this was the reason I was so upset. I spent 53 days in restriction and on extra duty.  I was still very much hurt and not feeling well at all at the end of my 53 days.  I was then told that I had stood an improper watch.  As a result, I was sent to Captain’s mast for the second time.  The ship was now getting ready for another four-month deployment.  During this time I was also married and trying to buy a house.  I went to mast and lost a month’s pay and got 30 days of extra duty and restriction.
I ended up losing my house.  My wife had no where to go and the Command would not put my wife in base housing.  I was still injured and became extremely frustrated and upset.  At this point, I made a bad choice and walked off ship.  I was gone for about a week and drove her from Norfolk, Virginia back home to California.  I made sure she had a place to stay, bought a plane ticket back to Norfolk, and called my command and told them I was coming back and gave them the flight number. My ship was still in port for about a week or two.  I knew I was in trouble for leaving and asked for a lawyer.  I was told that I would get one, but never did.  I never waived my right to see a lawyer.  At this time we left on another deployment.  We pulled in to port in Puerto Rico.  I still had not seen a lawyer or gone to mast. We were in Puerto Rico for about three days.  I was told that I would finish out the cruise until we got home.  About a week or two later I was sent to Captain’s mast without ever seeing a lawyer.  No one from my department helped me.  After the Captain~ s mast I was told that I would finish out the cruise.  Then I was to leave the ship. The next thing I knew, I was dropped off in Guantanamo Bay, Cuba and given a plane ticket to Norfolk.  I was “kicked off” the ship.  I was still suffering from my hernia condition.  When I returned to Norfolk I was sent home on leave despite the fact that I still had a hernia condition.  It was never made clear to me whether I was going to be discharged and if so what sort of discharge I would receive.  I made several attempts to get my DD 214 form from my Command but I was unsuccessful.  It was not until I wrote my congressman that I finally received my discharge paperwork and realized that I had received an other than honorable discharge.  At no time was I given the opportunity to present my case to an administrative discharge board or afforded other due process. Since leaving the Navy I have held steady employment.  My negative discharge category is hampering my efforts to progress in the U.S.  Forest service where I am currently employed and hope to have a career.  As such, I request that my discharge be upgraded to an honorable discharge.

I declare the foregoing to be true under penalty of perjury.

Date: 2004 04 23
J_ T_ (Applicant)

DECLARATION OF W_ W_ B_ (Applicant's attorney), ESQ.

I swear the following is true to the best of my knowledge and ability:

1.  I am the attorney for J_ T_ (Applicant); I am admitted to practice in all the courts of the State of California my bar number is 183656;
2.  Mr. T_ (Applicant) hired me to help him in his request to have his discharge upgraded to an honorable discharge;
3.  Mr. T_ (Applicant) experienced chronic hernia problems while in the Navy and it appears that the problem was never resolved while he was on active duty;
4.  The pain associated with Mr. T_ (Applicant’s) medical problem made his time in the Navy much more difficult. This problem also led to him making poor decisions such as going UA in order to drive his wife home to California;
5.  Had Mr. T_ (Applicant) been given the opportunity to present his case to an administrative separation board then perhaps the nature of the problems facing him would have become known and a different category of discharge would have resulted;
6.  Since being discharged Mr. T_ (Applicant) has remained gainfully employed and impressed all those around him with his abilities;
7.  However, the category of discharge received by Mr. T_ (Applicant) has made it difficult for him to advance in his current position;
8.  Mr. T_ (Applicant’s) success at making himself a productive member of society and the circumstances surrounding his discharge merit a discharge upgrade.

I swear the foregoing is true to the best of my knowledge and ability.

Date:  3/20/04
W_ W_ B_ (Applicant's attorney), Esq.”

Documentation

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

San Bernardino resolution, dated October 2, 2001
Character reference, dated November 22, 2003
Character reference from The City of New York, Fire Department, dated September 18, 2001
Job/character reference, undated
Applicant’s resume
Six pages from Applicant’s service/medical record

PART II - SUMMARY OF SERVICE

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

	Inactive: None
	Active:   None

Period of Service Under Review:

Date of Enlistment:  951024		Date of Discharge:  981028

Length of Service (years, months, days):

	Active:    02  05  28	Does not exclude lost time
	Inactive:  00  06  06

Age at Entry:  19			Years Contracted:  8

Education Level:  12			AFQT:  32

Highest Rate:  DCFN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF* 	Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  7

*No marks found in service record.

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:

960501:	Applicant to active duty.

980521:	NJP for Charge I - violation of UCMJ, Article 86: Absence without leave.  Specification: In that J_ M_ T_ ,DCFN, did on board USS CLARK (FFG 11), Naval Station, Norfolk, on or about 14 April 1998, without authority, failed to go at the time prescribed to his appointed place of duty, to wit: TPU Norfolk.
Charge II - violation of UCMJ, Article 92:  Failure to obey order or regulation.  Specification:  In that J_ M_ T_, DCFN, who knew of his duties on board USS CLARK (FFG 11) NAVSTA, Norfolk on or about 14 April 1998, was derelict in the performance of those duties in that he willfully failed to report TPU, Norfolk and various medical appointments, as it was his duty to do. .
	Award: Forfeiture of $591 per month for 2 months, restriction for 60 days, reduction to E-2.  No indication of appeal in the record.

980521:	Retention Warning:  Advised of deficiency (Absence without leave and failure to obey order or regulation.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

980717:	NJP for violation of UCMJ, Article 92: Dereliction in the performance of duty on 980711, to wit: negligently failed to indicate the correct temperature of chill box number 1 and 2.
Violation of UCMJ, Article 107: False official statements.  In that J_M_T_, DCFA, did, on board USS CLARK (FFG 11), Naval Station, Norfolk, on or about 11 July 1998, with intent to deceive, made an official entry, to wit: USS CLARK (FFG 11), located at Naval Station, Norfolk, VA, which was totally false, and was then known by the said member to so false.
Award: Forfeiture of $519 per month for 2 months, restriction and extra duty for 30 days, reduction to E-1.  Reduction suspended for 120 days.  No indication of appeal in the record.

980717:	Applicant undergoes psychiatric examination at Regional Support Group, Norfolk, VA.  Applicant admits significant social stressors marital and money problems.  Applicant determined to be fit for full duty.

980717:	Applicant to unauthorized absence 1800, 980717.

980724:	Applicant from unauthorized absence 2200, 980724 (7 days/surrendered).

980724:	Psychiatric evaluation conducted at Commander Regional Support Group, Norfolk, VA.

980811:	NJP for violation of UCMJ, Article 86 (3 specs): (1) Unauthorized absence from 1800, 980717 to 2200, 980724, (2) go from watch with intent to abandon the same at 1830, 980806, (3) go from watch with intent to abandon the same at 2045, 980806.
	Award: Forfeiture of $519 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

980818:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

980818:	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.

980818:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

981006:	CNPC 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, in absentia, on 19981028 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).

The Applicant contends that his Command was not supportive in his attempts to correct a hernia.  The NDRB considers the extent to which a medical problem might affect an Applicant’s performance and ability to conform to military standards of conduct and discipline; however, the Board does not consider the circumstances surrounding the Applicant’s stated condition, the implied incorrect diagnosis, nor the medical treatment given to the applicant to be of sufficient nature to exculpate the applicant’s misconduct.  In fact, the NDRB sees no connection between the applicant’s misconduct and his medical condition.  Relief is not warranted.

The Applicant's other than honorable discharge was proper and equitable.  The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted.  There is no evidence of impropriety, inequity or procedural irregularities in the Applicant's discharge.  On 980819 the Applicant acknowledged and waived his rights to an administrative board and to consult with counsel.  The Applicant was afforded the appropriate due process during the processing of his case. The Applicant's misconduct is clearly documented and his service was marred by 3 nonjudicial punishment proceedings for violations of Articles 86 (7 days unauthorized absences and abandoning his watch), 92, and 107 of the UCMJ.  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. An upgrade of the Applicant's discharge to an honorable characterization is not warranted.  Relief denied.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.   Outstanding post-service conduct, 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, is considered.  The applicant provided 1 letter of character reference, 1 undated letter from an employer, and 2 documents regarding his community service in support of the New York Fire Department during the 7-10 day period after September 11, 2001 as documentation of his post-service.  The applicant's efforts need to be more encompassing than those provided.  For example, the applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, and certification of non-involvement with civil authorities, in order for consideration for clemency based on post-service conduct.  At this time, the applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge.  Therefore, no relief will be granted.  

The Applicant contends that the characterization of his discharge is “hampering his efforts to progress in the U.S. Forest Service.” 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 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 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