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

, ex-AW3, USN
Docket No. ND05-00155

Applicant’s Request

The application for discharge review was received on 20041101.  The Applicant requests the characterization of service received at the time of discharge be changed to 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 20050118.  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 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated:

1.  “Dear Sirs,

This letter is in reference to my application for Review of Discharge or Dismissal from the Armed Forces of the United States.  I have attached a copy of DD Form 293 and a copy of the DD Form 214 (Member-4).  The following information is a supporting document to assist in your review of my current discharge status and to aid in the decision to upgrade my discharge to Honorable status.

To begin, I would like to say that I served my country proudly and would do so again.  I served in theatre during Operation Enduring Freedom and Operation Iraqi Freedom aboard the USS Kitty Hawk.  I was a Search and Rescue swimmer with HS-l4 where I recorded combat flight time and aided in various search and rescue missions.  During this time, I was awarded the Navy Achievement Medal, the Humanitarian Service Medal and various other letters of commendation and medals.  I also received the Good Conduct Medal for over three years of outstanding service.  With this in mind, I would like to address the three incidences that led to my General Discharge (Under Honorable Conditions).

My conduct was not an issue until I returned from Operation Iraqi Freedom to find myself taking emergency leave home due to my grandfather’s illness.  In order to reduce the stress I was under dining combat, my family tried to downplay how bad his condition was until I returned to Japan.  When I was able to phone home I was then told he was terminal and was asking for me.  I arrived home one week prior to his death, he knew I was there but he never really regained consciousness.  I understand that we have all lost love ones, however my grandfather raised me for six years until my father adopted me.  My grandfather was a permanent fixture in my life and taught me the values and beliefs of a good man and a good American.

The following incidences were the result of the stresses of war, the death of my grandfather, and the everyday living isolated from my family by over 5000 miles in a foreign country.  These events led to a mild state of depression accompanied by a diagnosis of Post Traumatic Stress Syndrome that went undiagnosed until after my release from the military.  This diagnosis was made in March of 2004 by Dr.  D_ T_, a psychologist I consulted when I returned to Texas.  The incidences referenced for the General Discharge were I) one day unauthorized absence, 2) use of language that brought discredit upon the Armed Forces, and 3) a DWI, on base NAF Atsugi.  All three events occurred within a six month time frame.

The unauthorized absence occurred during my leave for my grandfather’s funeral.  In the confusion of the funeral and personal family business surrounding his death I did not realize my leave was over.  The squadron contacted me at home informing me I was to return immediately to Japan.  Once I realized the mistake, I attempted to gain an extended leave.  Through miscommunication, my commanding officer was not notified and my extension was never granted.  Assuming that my leave had been granted, I then began attempts to return as quickly as possible.  Upon my return to Japan, I found I had been declared UA for one (1) day and went to NJP for unauthorized absence where I received 30 days restriction and loss of 1/2 months pay.

Approximately three months later the second offense, which was using language that brought discredit upon the Armed Forces, occurred.  During a joint war-based exercise with the Japanese Maritime Self-Defense Force submarine, in my position as an anti-submarine warfare systems operator, I was assigned to hunt and simulate an attack on enemy submarines.  After the briefing and prior to the mission, I signed out on the duty board and gave my position/location as “out killing Japs”.  The space allowed for writing my location was approximately ¼” by 4”.  Please note this board was located at the back of my private work center in a secured area.  The board was not visible to passing individuals and the writing was facing the back of the building.  In order to see the board a person must access the area, cross to the rear wall, and walk around the board.  A fellow aircrewman felt this remark was racially motivated and brought this to the attention of my department head.  This remark was never racially motivated and I do not consider myself a racist.  My family consists of many diverse ethnic backgrounds and at the time of the incident I was dating a Japanese lady that I continue to remain friends with.  The Chiefs Board, after my explanation, ruled the phrase not racially motivated and recommended I not be punished for the comment.  However higher ranking officers disagreed and I received a reduction in rank from E5 to E4 at NJP.

This particular charge is very difficult for me to accept.  I am from a small town in Southeast Texas that is well known for its agricultural contributions in rice fanning.  Until the summer of 2004, there was a well-traveled road in our town named Jap Road.  This road was named in honor of the first Japanese rice farmer in our area.  I have attached a newspaper article giving the local history of the farmer and his family and his contribution to the area’s growth.  The word “Jap” carries no racist connotations for me or my family, or as shown in the article, those who live in our area.  After the controversy of this past summer, and the subsequent name change of Jap Road to Boondock’s Road, I can now understand where the phrase may have been misconstrued as racist.  It was never my intention to insult any of the people of Japanese heritage and regret that the incident took place.

The final offense, the DWI on NAF Atsugi, occurred around the first of February,
2004.  After another night at the base club I drove my car two blocks to the barracks.  I was pulled over for not stopping long enough at the stop sign in front of my barracks.  When the Navy Police realized I had been drinking, they issued the field sobriety test.  I passed this test but due to the alcohol on my breath I was taken to the base police station according to base regulations.  I was then given a breathalyzer which I failed.  After this incidence I received my third NJP within a six month period.  This in turn led to my immediate discharge from military service for a pattern of misconduct.  This final incidence was clearly an act of stupidity for which I take full responsibility.

I realize the series of events does not paint a picture of an honorable sailor.  However, I am requesting that you look at my overall record of service and the life-changing events that preceded my fall from grace.  Two of the incidences occurred due to issues that were sparked by grief and misunderstanding.  The final event was my immature decision to cope with my problems through the use of alcohol.  I would also appreciate your consideration of the hard work and changes I have made in my life in order to return to the right path.  Since my release from the military, I have returned home and I am currently attending Lamar University.  I have sought medical assistance for my depression and PTSD.  I am active in a program to overcome my depression and anxiety.  Upon my return, I have worked two jobs and continue to work part-time while attending college full-time.  I am requesting this upgrade in order to access the Montgomery G1 Bill to fund the last two years of my college education.  I will then receive a degree in Business Administration and Advertising.  I would appreciate your reviewing this data and focusing on my service as a whole, not just the last six months.

In conclusion, I would like to thank you for your time and consideration.  No matter the outcome of this board, I would like to stress that I served my country proudly and would do so again.  I realize I made mistakes but they do not overshadow the pride I have for my country and Navy.

Thank you,

J_ R_ B_ (Applicant)”

Documentation

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

Applicant’s DD Form 214
Newspaper article dtd 041010

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	991020 - 000111	COG
	Active:  None

Period of Service Under Review:

Date of Enlistment:  000112		Date of Discharge:  040218

Length of Service (years, months, days):

	Active:    04  01  07
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 (12 months extension)

Education Level:  12			AFQT:  78

Highest Rate:  AW2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.25 (4)		Behavior:  2.75 (4)		OTA:  2.52

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, LoC, SSDR (2), OSR (2), NAM, HSM, MUC, AFEM, GCM

Days of Unauthorized Absence:  None

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:

030618:	NJP for violation of UCMJ, Article 86:  Absent without leave.
	Award: Forfeiture of ½ pay per month for 1 month(s), 30 days restriction and 10 days extra duty.  No indication of appeal in the record.

030718:	Retention Warning:  Advised of deficiency (Violation of Article 86), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

030926:	NJP for violation of UCMJ, Article 134: Conduct of a nature to bring discredit upon the US Armed Forces.  Article 92:  Failure to obey a lawful order.
Award:  RIR.  No indication of appeal in the record.

040204:	NJP for Violation of UCMJ, Article 111:  Drunken or reckless operation of a vehicle, aircraft or vessel.  Violation of UCMJ Article 92 failure to obey order or regulation.
Award:  45 days restriction and extra duty.  No indication of appeal in the record.

040205:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

040205:	Applicant advised of rights and having elected not to 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 

040210:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  

040212:	CO, Helicopter Anti-Submarine Squadron 14 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 20040218 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.  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 three nonjudicial punishment proceedings for violations of Articles 86, 92, 111 and 134 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.  Relief is not warranted.

The Applicant contends that his problems in the Navy can be attributed to his grandfather’s death, post-traumatic stress disorder and being far from home.  While he may feel that his personal 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 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 sufficient documentation for the Board to consider.  Relief 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.  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), re-issued October 2002, effective 22 Aug 2002 until Present, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

B.  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.

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.

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