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

 
 ex-SR, USN
Docket No. ND04-01091

Applicant’s Request

The application for discharge review was received on 20040622.  The Applicant requests the characterization of service received at the time of discharge be changed to  general/under honorable conditions.  The Applicant requested a hearing before a traveling panel closest to Chicago, IL.  The Applicant did not list any 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 National Capital Region. The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing.  Subsequent to the submission of DD Form 293, the Applicant obtained representation from American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050224.  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/IN LIEU OF TRIAL BY COURT MARTIAL, authority: NAVMILPERSMAN, Article 1910-106 (formerly 3630650).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated:

1.  “I entered the US Navy at the age of twenty.  I came from somewhat of a military family, two of my brothers were Marines, a couple of my uncles were in the Army and my aunt and her husband are both Navy veterans.  He is retired and she is scheduled to retire soon.

With such a military background.  I always had a sense that enlisting is what I wanted to do and could do.  I remember taking a test my senior year in high school that said I would make a good military person.  That pretty much sealed the deal for me.  I had a really good idea of what I was going to do.

I initially joined the Marines through the delayed enlistment program (DFP) and was already to go, except I didn’t graduate when scheduled so I couldn’t go.  The Marines gave me a DEP discharge because of that reason.  I continued with school and went on to graduate.  I also met this girl who I fell in love with.  We dated for awhile and she got pregnant.  I didn’t know what to do.  I was working at a warehouse but only making around $200.00 a week with no benefits.  I couldn’t take care of a family on that, so I did some serious thinking about how to provide.

I was young and immature.  I was only 20, and I was scared and didn’t have a clue what to do.  So we got engaged and I joined the Navy.  I knew I had to do something to take care of our child that was going to be brought into this world and it was my responsibility.  So I signed up with the Navy and left for boot camp on May 26, 1998.  As I said before, I was scared, young and immature but I had to do something.

Once there I adjusted very quickly and was soon the top of my division.  My test scores and PT tests were very good.  Out of 90 guys I was in the top ten.  I was doing very well.  My daughter was born while I was in boot camp and she was doing very well.  I graduated and got to see my daughter for the first time at Recruit weekend.  At the end of the weekend my family left for home and I went back to the barracks pleased with my decision I had made to join the Navy.

The following day I was called to the front of the barracks and was told to go see the Chaplain immediately.  Senior Chief didn’t give me any more information than to go to the Chaplains office.  I arrived at the church and was greeted by the Chaplain who proceeded to tell me that a message had came through the Red Cross.  My girlfriend was in the hospital and she had been raped.  You couldn’t believe the things that were going through my head.  So many emotions all at once I didn’t know what to do.  The Chaplain made some calls and was able to get me home for 5 days.

I arrived back at my barracks with tears streaming down my face.  All of my shipmates obviously knew something was wrong.  I walked to my bunk and was greeted by Petty Officer who I handed my paper work to me for my leave.  He read it and told me to pack all of my belongings and he would call and get me a train ticket.  I told two of my closest shipmates who were from Chicago what had happened and that I was leaving on leave for 5 days.  They told me not to do anything stupid.  I grew up about an hour from Chicago so we had a lot in common, which is why we were so close.

When I arrived home I tried to do what I could to comfort her. The five days went quickly and I was on my way back to school.  Arriving at school I was told that I was going to have to wait a week and start with another class, which upset me because I already had friends from boot camp who were the same rate as me.  We were excited to be in the same school.  When I left boot camp I was told because of the short leave that I was taking I would arrive at school in plenty of time to start my scheduled class time.

While at school I was getting calls from home from my fiancée telling me that the guy that raped her was walking by the house and she was obviously scared.  The police did pick him up but he had an alibi and they didn’t have enough evidence to hold him.  After I was told that news I didn’t know what to do.  The martial, family and childcare problems were impairing my ability to serve.  I was about a month into school when my fiancée sent a message though the Red Cross that my daughter was in the hospital with breathing problems, so once again I was granted leave and went home to see my daughter.  From the way me fiancée made it sound, our daughter was not doing well at all.  When I got home my daughter didn’t seem like she was having any problems whatsoever.  That made me a little suspicious

My military record up to this point was pretty good, but it was getting really hard to serve and finish my school and do my job with all of my personal problems going on.  As I have stated before my youth and immaturity along with the rape of my fiancée and the supposed health problems of my daughter was impairing my ability to serve.  While at home this time to see my daughter I stayed and was UA for about 35 days.  I was confused and didn’t know what to do, once again my youth and immaturity played a big role and all of the other stuff didn’t help either.

I went back to the base on my own and was put into the TPU.  There I was asked what I wanted and I said that I wanted discharge.   I couldn’t perform my duties because of all the stuff going on so I wanted out.  Under current standards,  I would not receive the type of discharge I did.  I received an UNDER OTHER THAN HONORABLE CONDITIONS discharge.  I have regretted getting out of the Navy every day I have been home.  I know that I was the one that made that choice but I had a lot of help with all of the distractions at home.  For 6 years I have owned that one poor decision every day, through every job interview and every conversation with anybody who didn’t know me.

I now have two daughters with the same woman.  but we haven’t been together in 5 years.  Not long after I had been home she became pregnant with my second daughter and a couple of months later I found out that she was cheating on me, so I ended our relationship.  In the last 6 years I have grown and matured a lot.  Having two kids and taking care of them has turned me into a man.  This is why under current standards; I would not receive the type of discharge I did because I wouldn’t leave a responsibility.  I would finish my term and if any problems at home arose I would let my family handle them.  There is no way I would leave before my Navy tour was finished.

When I talked to the Petty Officer at the recruiter station, he said that he knew about paper work that I could fill out to get my discharge changed.  I couldn’t believe it.  I had been at the recruiter’s station about 3 years before and the people there didn’t know anything regarding changing a discharge.  It felt like this big weight had been lifted off of my chest, that there was a chance of getting it changed.  I have wanted to get back into the Navy since I got discharged.

If I can get my discharge changed there is a chance that I could go back in.  If I could get back in I would pick it up and move with it like crazy.  After being shown all of the prejudice of my discharge and the feelings it leaves within there is no way I would leave before my term was finished.  Even if I can’t get back in but am granted the discharge change, I might be able to get a good civilian career going with a better discharge.  The OTH gives employers an incorrect impression of me.  I am not a bad guy; I am not into drugs or stealing like a lot of people around here who hold very good jobs.  Since discharge I have been a very good citizen.  I haven’t been arrested for anything because I don’t do anything wrong, my driving record has been perfect for 7 years now, I just never get any tickets.  I help in the community with the fair that we have every year and everybody in the community speaks and smiles every time they see me.  Besides my discharge which not everybody knows about I am very well liked.

I recently heard from my father, whom I haven’t heard from in 6 years.  He is 72 years old and is still working.  His health is diminishing and he should be retired by now.  I am going to be 27 and I don’t have anything to show for my life yet except for 2 beautiful daughters.  I live at home with my mother and work at her bar part time.  I have nothing and the future doesn’t look all that bright.  I don’t want to end up like my father not having any money to retire with and still working at the age of 72.  I want to succeed and be somebody, for myself and my kids, I want them to be proud of me when they get older and figure out what is going on.  I need this; I need to get my discharge changed so that I can have a chance to succeed.  With my current discharge I am not going to be able to.  So please really consider my request for a discharge change so that I maybe able to get back into the Navy and I can have the type of career I know I can have.  If I can’t get back in at least I will have a better chance of succeeding with a better discharge in the civilian world, Thank you.”

Additional issues submitted by Applicant’s counsel/representative (AMERICAN LEGION):

2.  “Equity Issue:  Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174D, Part V, Paragraph 503, as it pertains to post-service conduct, in assessing the merits of this application.
_______________________________________________________________________

In accordance with Title 32, CFR, Section 724.166 and SECNAVINST 5420.174D, Part I, Paragraph 1.20, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement in supplement to the Applicant’s petition.

The SR is incomplete.  In particular, the discharge package is missing.  Review of the available records reflects that this former member was pending SPCM charges for VUCMJ, Article 86 (980908-981015).  At his request, he was granted an administrative separation in lieu of going to trail.  On 981119, he was discharged Under Other Than Honorable Conditions in lieu of trail by court martial as authorized by NAVMILPERSMAN, Article 1910-106.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because mitigating marital problems contributed his misconduct of record.  He has not submitted any additional documentation for consideration.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by Title 10, USC, Section 1553 and set forth in Title 32, CFR, Part 724 and SECNAVINST 5420.174D.

This case is now respectfully submitted for deliberation and disposition.”

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: 	USMCR (DEP)	9507xx - 9607xx*	
USNR (DEP)		980514 - 980527	COG
	Active:   	None

Period of Service Under Review:

Date of Enlistment:  980528		Date of Discharge:  981119

Length of Service (years, months, days):

	Active:    00  05  22		[Does not exclude lost time]
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 (12-month extension)

Education Level:  12			AFQT:  59

Highest Rate:  SR
	
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:  37

*No other information available, extracted from DD Form 1966/3
**No marks found in service record
Character, Narrative Reason, and Authority of Discharge (at time of issuance):
UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority:  NAVMILPERSMAN, Article 1910-106 (formerly 3630650).
Chronological Listing of Significant Service Events:

981119:	DD214 Issued.  Discharged, under other than honorable conditions by reason of separation of lieu of trail by court-martial.

Discharge package not contained in service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19981119 under other than honorable conditions in lieu of trial by court-martial (A and 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).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (E).    

Issues 1-2.  In the absence of a complete discharge package, the Board presumed regularity of governmental affairs.  Therefore, the Board presumed the Applicant requested discharge to escape trial by court-martial, had the elements of the offense for which he was charged fully explained by counsel, that he was guilty of the offense and that he had a complete understanding of the negative consequences of his actions.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

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 unauthorized absence in excess of 30 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 "youth and immaturity" and personal problems.  While he may feel that his immaturity and personal circumstances 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.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Relief denied.

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety 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 any documentation for the Board to consider.  Additionally, an unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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 10 July 2000, Article 1910-106 (formerly 3630650), SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

B.  A punitive bad conduct discharge may be adjudged for violation of the Uniform Code of Military Justice, Article 86, unauthorized absence for a period more than 30 days, upon conviction by a Special or General Court-Martial, in accordance with the Manual for Courts-Martial.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023