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

  ex-MSSR, USN
Docket No. ND05-00239

Applicant’s Request

The application for discharge review was received on 20041117.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record review.  The Applicant listed the American Legion as the representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20050713.  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 on the application:

1.  “Please allow me to put my reasons for an upgrade in a document form.  It allows me to better express myself and give clearer details.  Thank you.

On May 25, 1999, I started my life anew by joining the navy.  I joined the navy life like most young people to get away from a life of depression, drugs and crime.  I also joined to travel the world and get money for school.

I didn’t know much about the Navy but I knew it was a fresh start.  From boot camp on I was known for my quick decision making.  I was called on throughout battle stations to figure out situations and problems that other couldn’t.  After boot camp I went on to MS “A” school in Lackland AFB Texas.  There I was put in my different position (mainly positions with supervision).  I was well respected by my division leaders and peers.  While in “A” school I received the position of religious leader.  Being the religious leader my position required me to resolve situations before matters got worse.

October 31, 1999.  I reported to the supply ship USS Rainier AOE 7 in Bremerton.  Washington.  After a couple of months I began to have problems in the division.  I was told to come in on my days off and not accounted for them.  I was the first junior MS to aboard the ship and I felt every minute of it.  By it being a shortage of MS’s I was doing the work of three MS’s.  If I were to get sick in quarters (SIQ) or anything of that nature I would he told to make that day up by volunteering for someone else.  When other individuals did the exact same thing they were not told to make up their day

For several months I’ve had problems with my division.  I was told to attend a meeting with my chain of command.  There were no females in the storage room (which served as a meting room).  I was the only female in the room of Petty Officer First Class to Lieutenant’s (E-6 to 0-3).  I asked permission to bring another party in because I felt uncomfortable and I was denied that right.  As the meeting progress I was basically told that I wasn’t strong enough to be in the Navy and that women shouldn’t he allowed to do certain jobs.  From that point I felt disrespected and degraded.  I left from that meeting with and urgency to leave that division.  Countless days and weeks went by were I would have these “meetings” with the supply’ division and others brought in not from the supply division but not until I took the time to read and asked for help on the rules and regulations was I granted permission to bring in a third party.  The more I learned my rights and understood them the more I would get written up for the smallest things.  I went through countless captains’ mast and hours of restriction.  My division thought it was in their best interest to take me out of the galley (kitchen) and place me below deck “out of the way”.  I was told that they didn’t trust me anymore and that I should get my priorities start while I was out of the galley.  While I was working for MS1 K_ below deck my knock-off hours were at 1530 (3:30 pm) but my division wanted me to stay until the rest of the cooks left which was 1900 (7pm).  I was told that I wasn’t a cook anymore so I shouldn’t associate with anything the cooks do.  While I was working for MS1 he told me when he’s done them Fm done meaning that all work is done and that we were finished for the day.  So I was finally told that I had been disobeying and direct order and that I would be send up to captains’ mast again.

In June of 2000 1 found out I was pregnant.  I left the ship and was placed on shore duty until I was giving orders.  I was having problems and I terminated the pregnance.  I went to a facility outside of the navy.  At this particular clinic an HM1's wife worked there.  She went back and told her husband my private information and in return he told shipmates onboard the Rainier.  That same day another HM1 told me that he was spreading this information so I immediately went the base JAG officer.  I told him the situation and we sat down and drafted up a letter to write to that organization.  The letter stated that I would like all monies return and the termination of the employee which violated my rights.  The Jag officer told me I have the right to deny services by this corpsman but those rights were denied.  This corpsman would purposely give me shots wrong and bruise my skin and nothing was ever done and I was told to “take it as a lost”.

The pressure from my division started to take a toll on me I began to have anxiety attacks and migraines every time I walk into my work area.  I consulted with my ships chapel and equal opportunity officer.  I couldn’t find the help I needed so they sent me the navy hospital for an evaluation.  The medical officer was more concerned with my childhood more than my work condition.  By this time I was placed back on the ship.  My main goal was to transfer to another division.   Everyday I becoming more and more strenuous.  I found myself feeling depressed and even thought of commenting suicide right in front of’ my best friend.  The very next day the captain called for all restricted personal to report to the captains' cabin.  The captain was known for checking upon the crew and any concerns that they had so on this day he asked if I had any and if so what they were.  I told him the problems I had, how I felt out of place and my rights had been violated.  He said that he would look into.  And I was on my way.  For the next couple of months things ran smoothly.  The captain had a meeting with all officers pertaining to crew members and the morale of the crew.  Its was like he took what I said and put it into action.

I was back in the galley and began to regain trust in the division.  We were getting returning from the Christmas break and I received a phone call stating that my aunt (who was my guardian) had passed.  I asked my SUPPO could I send a chit up for emergency leave and he told me no.  I said that I would send it anyway and he told me that he would make sure it didn't make it passed him.  Not knowing any other way or person to turn to I went U/A (unauthorized absence).  I was under direst that I started drinking and doing drugs badly.  So finally I went home to bury the people who encourage me to join the navy and see the world and what it has to offer.  I went home and help with the arrangements of the funeral.   When I got home my family members told me that the ship had call and apologized for the lost and asked if I could call when I got there.”

Additional issues submitted by Applicant’s 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 also 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 724.116 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 reflect that this former member served generally without incident until she was awarded NJP on 000602 for VUCMJ, Articles 86 (6 specs), 91, 92, 107;  NJP on 000928 for VUCMJ, Articles 86, 107 and NJP on 010127 for VUCMJ, Articles 86 (2 specs), 107. She was discharged Under Other Than Honorable Conditions due to a pattern of misconduct as authorized by NAVMILPERSMAN, Article 1910-140.

Essentially, as noted on DD Form 293 attachment, this Applicant is requesting that her discharge be upgraded because she was treated unfairly by her command which contributed to her misconduct of record.  She 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:

None were submitted

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	981214 - 990524	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  990525		Date of Discharge:  010410

Length of Service (years, months, days):

	Active:    01  10  16	(Does not exclude lost time)
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  11			AFQT:  34

Highest Rate:  MSSA

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:  16

*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:

000315:	Applicant awarded 2 hours of extra military instruction (EMI).  EMI to commence 0500, 000320.  The following military deficiency has been noted: Tardiness, which has extremely affected the working environment in the workspace due to the numerous times that the Applicant was late.  Applicant directed to report 15 minutes prior to the commencement time for purposes of mustering and receipt of instructions.  Applicant forgot EMI.  EMI rescheduled to 000324.

000602:	NJP for violation of UCMJ, Article 86 (6 specs):  Unauthorized absence, violation of UCMJ, Article 91:  Willfully disobeyed a lawful order, violation of UCMJ, Article 92:  Failed to obey a lawful order, and violation of UCMJ, Article 107:  False official statement.
	Award:  Forfeiture of $503 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  Forfeiture, reduction, and restriction and extra duty for 15 days, all suspended for 6 months.  No indication of appeal in the record.

000602:	Retention Warning:  Advised of deficiency (Unauthorized absence (4 specs), disobey a lawful order, failed to obey a lawful order and false official statement.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

000928:	Vacate suspend forfeiture, restriction and extra duty awarded at Commanding Officer’s NJP dated 000602 due to continued misconduct.

000928:	NJP for violation of UCMJ, Article 86:  Unauthorized absence - going from appointed place of duty, violation of UCMJ, Article 107:  False official statement.
	Award:  Forfeiture of $503 per month for 2 months, restriction and extra duty for 45 days.  Forfeiture, restriction and extra duty suspended for 6 months.  No indication of appeal in the record.

001228:	Applicant to unauthorized absence 0715, 001228.

010114:	Applicant from unauthorized absence (15 days).  [Extracted from DD Form 214, Block 29.]

010127:	NJP for violation of UCMJ, Article 86 (2 specs):  Unauthorized absence, violation of UCMJ, Article 107 (2 specs):  False official statement.
	Award: Restriction and extra duty for 45 days.  No indication of appeal in the record.

010410:	DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct due to a pattern of misconduct, authority:  NAVMILPERSMAN, Article 1910-140.

Complete discharge package unavailable

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010410 under other than honorable conditions for misconduct due to a pattern of misconduct (A).  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 (B and C).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).

Issue 1.  Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question.  No such impropriety or inequity is evident during the Applicant’s enlistment.  When the service of a member of the 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 repeated unauthorized absences, orders violations, and false official statements.  This misconduct resulted in one written counseling/retention warning and three nonjudicial punishment proceedings for violations of UCMJ Articles 86, 91, 92, and 107.  The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her contract with the U.S. Navy.  Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of her characterization of service.  Relief is not warranted.

The Applicant contends that her rights were violated and that she was generally treated unfairly while aboard the USS RAINIER (AOE 7).  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of establishing her issues through the presentation of substantial and credible evidence.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that her rights were violated in any way or that she was treated unfairly by her chain of command.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  Relief denied.

Issue 2.  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 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.  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 her 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 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

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

D.  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