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

  ex-PHAR, USN
Docket No. ND05-00319

Applicant’s Request

The application for discharge review was received on 20041210.  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 did not list any representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation from the American Legion.

Decision

A documentary review was conducted in Washington, D.C. on 20050323.  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.  My discharge was inequitable.  I was discharged after trying to reconcile my great fear of flying with my military duties.  I first flew on an aircraft when I went to boot camp.  The plane flew through a large storm and made me sick.  Eventually I became sick and very panicky even thinking about flying.  After I went to NAS Oceana, several of the people in my squadron were involved in substance abuse of various types, including the officers.  One squadron commander committed suicide after raping an enlisted member.  These events, and those of 11Sept01, combined to cause me to greatly mistrust the Navy’s aviation program, and gave me an even greater fear of flying.

2.  When I found that I couldn’t fly, I reported for medical treatment, and was found to be unfit for flight duties.  When I asked for help from my senior leadership, I was alternatively called a coward, then told I was faking.  Instead of help, I got humiliation and punishment, and was informed that I was still going to fly.

3.  Prior to these events, I was a proud and dedicated sailor.  I worked hard and was graduated first in my “A” school class.  I was promoted meritoriously to E-3, and was recommended to participate in the next exam for PO3.

4.  My initial UA resulted from my taking a bus instead of a plane to my duty station.  I offered to transport myself via bus to the ship.  I was told I would fly with the rest of the squadron.”

Additional issues submitted by Applicant’s representative (American Legion):

5.  “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 724.116 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 this Applicant’s petition.

Review of the available records reflect that this former member maintained satisfactory 3.00 performance and 3.00 conduct markings. He was awarded NJP on 011128 for VUCMJ, Articles 86, 92; NJP on 011227 for VUCMJ, Article 87 (2 specs) and convicted my SCM for VUCMJ, Articles 86, 134.  Following due process notifications, he 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, this Applicant is requesting that his discharge be upgraded because his misconduct stemmed from his uncontrollable  phobia of flying.  Instead of his command providing him assistance and counseling for the problem he was humiliated and punished with an UOTHC discharge.  He has not submitted any additional documentation beyond copies of his service record 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
One page from Applicant’s medical record
Four pages from Applicant’s service record
Passenger manifest, dated April 12

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	000822 - 001205	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  001206		Date of Discharge:  020426

Length of Service (years, months, days):

	Active:    01  04  21
	Inactive:  None

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

Education Level:  12 ½ 		AFQT:  77

Highest Rate:  PHAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (1)		Behavior:  3.00 (1)		OTA:  3.00

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  22

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:

011128:	NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ, Article 92: Orders violation.
	Award: Restriction and extra duty for 30 days.  No indication of appeal in the record.  [Extracted from Commanding Officer’s letter dated 020223.]

011128:	Retention Warning:  Advised of deficiency (Unauthorized absence and failure to obey a lawful regulation), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

011227:	NJP for violation of UCMJ, Article 87 (2 specs): Missing movement.
Award: Restriction for 60 days.  No indication of appeal in the record.  [Extracted from Commanding Officer’s letter dated 020223.]

020113:	Applicant to unauthorized absence 2200, 020113.  Applicant declared a deserter on 020122.

020205:	Applicant from unauthorized absence 1500, 020205 (22 days/surrendered).

020215:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 86:
	Specification: Unauthorized absence.
	Charge II: violation of the UCMJ, Article 134:
	Specification: Break restriction.
	Sentence: Confinement for 30 days, reduction to E-1.
	CA action.  Not found in service record.  [Extracted from Commanding Officer’s letter dated 020223.]

020222:	Applicant notified of intended separation processing by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct.  Applicant notified that if separation is approved, the least favorable characterization of service possible is under other than honorable conditions.

020222:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights.

020223:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct.

020416:	COMNAVAIRLANT Norfolk, VA directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

Complete discharge package unavailable

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020426 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).

Issues 1 and 2:  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.  The Applicant contends that his discharge is inequitable because his misconduct was a result of his fear of flying.  The Board found the Applicant’s issue to be without merit.  The evidence of record indicates that the Applicant’s chain of command attempted to secure orders for the Applicant in which he could have avoided air travel.  Despite these efforts, the Applicant continued his misconduct by breaking restriction and commencing a period of unauthorized absence.  As such, the evidence of record indicates that while some of the Applicant’s misconduct may have been predicated upon his fear of flying, his continued misconduct convinced this Board that his disregard for Naval rules and regulations extended beyond a simple phobia.  Relief is not warranted.

Issues 3 and 4:  The Applicant contends that he served the United States well and he is entitled to an upgrade.  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 unauthorized absences, orders violations, missing movements, and restriction breaking.  This misconduct resulted in three separate nonjudicial punishment proceedings for violations of UCMJ Articles 86, 87, and 92, and one summary court-martial conviction for violations of UCMJ Articles 86 and 134.  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.  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 his characterization of service.  Relief is not warranted.

Issue 5:  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 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 5420.174D 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