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

 ex-ETSN, USN
Docket No. ND05-00392

Applicant’s Request

The application for discharge review was received on 20050103.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  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 20050727.  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:

Issue 1: My discharge was improper because it was based on an isolated period of two months before my discharge with no other adverse actions in all of my 52 months of honorable service.  Use personal statement for details regarding issues from here forward: page 3, paragraph 1, sentence 7, starting with “After”.

Issue 2: Use personal statement: page 2, paragraph 2, sentence 1.    
Issue 3: Use personal statement: page 2, paragraph 3, sentence 1
Issue 4: Use personal statement: page 2, paragraph 3, sentence 2
Issue 5: Use personal statement: page 3, paragraph 1, sentence 1
Issue 6: Use personal statement: page 3, paragraph 2, sentence 1

Issue 7: The characterization of service is inequitable due to the demonstrated exemplary post service quality of workmanship.  Use enclosed statements by Home Depot associates.

Applicant’s Personal Statement:

REQUEST FOR REVIEW OF CHARACTERIZATION OF SERVICE

         In the time of my 52 months in the Navy I have served nothing less than exemplary.  As a dedicated radar ET with an NEC for IFF, life can be pretty tough, always troubleshooting, always battling inextricable feelings of not meeting expectations, as a corollary and in effort to make life a little more easier, one tries to learn as much as he or she can.  In my 52 months in the Navy I have completed Advanced Electronics Technical Core, ET “A” school, and “C” school with outstanding marks, all before demonstrating my abilities to utilize this knowledge on my lint ship, and which is exemplified in my evals.  I demonstrated such promising results that I was subsequently sent to the most elite ET “C” school in the navy, IFF (Identification Friend or Foe).  This was one of my biggest accomplishments ever.  After putting on third class it was a battle if not an all out race to make 2nd despite the 5% advancement rate When I wasn’t troubleshooting, running aloft chits, getting qualified, manning posts, standing watch, doing working parties, I was studying for the advancement test, and even pursuing extra curricular activities.

         I performed the standard vast array of things in the navy that anyone who has been in can attest to.  Considering the national dilemma with terrorists one might even say these last few years have been even more difficult.  I wasn’t a 4.0 sailor all the time but I certainly worked very hard at everything I did, and to what I think is as hard as I could

         I can remember, after 9/11 hit, there was a lot of confusion on the ship (and around the world for that matter), and a huge amount of motivation was directed in so many ways, nobody really knew who to blame or what kind of action to take, some people helped out the community on there spare time, some people donated money to charity groups, some people prayed more but even more still were dedicated to the thing that they thought could do the most damage and yield the most restitution to the terrorists who committed that indescribably horrific act, be extremely pro navy.  I found myself one of these people, I relinquished myself to a study frenzy in an effort to one day become a successful officer.  I wanted to get my degree more than anything so that I could make a successful career out of the navy.  That’s why in between this workload, I managed to take on a mind boggling 8 additional college courses in an attempt to get that degree.  I wish things would have kept going in this manner but all this was about to change. 

       In the beginning of an outrageous last 6 months in the navy, a chief checked on board who was going to go on to make my life hell, and change it permanently from that moment forward; he wanted to establish himself as a leader quickly in an attempt to make senior chief.  How he went about it was keen and yet predominately hideous.  You see, we had been in the Persian gulf fighting for everything we stood for, for about 4 months, doing a momentous amount of drills, firing off tomahawks (we were supposedly the first!) finally acquiring ESWS and doing all the necessary crazy things that were required of us, we were all pretty stressed out.  I don’t know if it was a matter of being in the wrong place at the wrong time with this chief or what, but he immediately disliked me.  As soon as he found out I was taking college courses it’s like he tried to stop it.  He told me “college is for shore duty!” I adamantly disagreed and his disliking for me intensified. This was what ultimately led to, in my opinion, an illegitimate mast case. Even after demonstrating myself again and again, he, in an attempt to make friends with the other shipmates and ultimately make himself look better and expedite his advancement, continued to defame me to other chiefs and his perceived good friend the XO.  He told them my heart wasn’t with the navy and I was just flying to “get by.” My relationship with this chief was the source that spawned my spiraling downfall in the last couple of months before I broke down and went UA directly after the mast case (first mast case I’ve ever had in my four years in the navy).  That is where I went completely wrong and this is what eventually led to my loss of hope for the Navy at the time. 

       At XOI before captain’s mast, after I had just gotten diagnosed with an anti-social disorder, the  XO told me specifically “When you go to captain’s mast the captain will probably give you 15 days restriction and I recommend that you just do it!,” I said “With all do respect sir, I didn’t do anything  wrong” after agreeing with me, he told me I had a choice, get out under a medical discharge or stay in and serve the rest of my enlistment, ironically after telling him it would be better if I got out, I get max punishment at co’s mast (45 days restriction, busted down to e-3 after 4 years of honorable service, half pay, extra military instruction).  I couldn’t believe it, I was devastated, after everything I had done for the navy, I found myself asking what happened, I didn’t do anything wrong, I was set up to be made the example out of, so the only thing I could think of was to show them who was right which turns out, to be the utmost wrong thing to do, in a moment of confusion, I went UA.  This is where I went absolutely wrong.  This was the grounds for separation under other than honorable conditions.  This was grounds for tacking on pattern of misconduct.  This one irreparable mistake, caused me to be forever scarred.  I wish I could change, among other things, this one event, which I believe would have precipitated totally different outcomes and undoubtedly permit me to finish out my naval career with an honorable discharge.  After doing over 4 years of honorable service to my country, striving to meet standards that were seemingly impossible to me, finishing ESWS, serving in the Persian Gulf receiving 7 ribbons, I’m just kicked to the curb with an OTH.  What I did was a horrible thing, and it was other than honorable, but I did my time and then some.  I served 25 days in the Miramar brig, I did 45 days restriction on the ship, busted down a rank which caused me to loose all those PNA points and for any other rate it’s debatably just an inconvenience, for an ET, its a momentous setback.  On top of all this, after coming back from UA, I was thrown into the deck department with all the other seaman for the next 3 months.  I had to live with them, do there same duties, stand watch with them, stay late with them, do all the grunt work that I had already performed 4 years ago.  It was demoralizing to say the absolute least.

       I have been doing so well out here in the civilian world and have been working at the Home Depot call center in San Diego as an electrical troubleshooting expert (despite my electronics background).  I want to get a recommendation from my present civilian boss but then she would know that I got an OTH, I wouldn’t feel comfortable with her knowing that, and probably wouldn’t have got the job if I told her (she didn’t ask).  I deserve better than this.  I deserve an education and the opportunity to tell a prospective employer that I served 4 honorable years in the military, and then have the paperwork to back it up.  I want to show my family.  I want to have this behind me so I can move on with my life and not always have bad feelings about what happened, where I went wrong and how I shouldn’t have committed that stupid irresponsible act.  I want to get my degree from a real university that I could afford with the G.I., so I can make my father proud.  Right now I am enrolling at a community college, taking English comp, chemistry, and biology, despite it’s difficulty, I want to do well and go on to be a pharmacist, or even apply to medical school or become a biotech engineer.  I have high goals and the competency to realize them.  I know you can’t fix the past, but you can give someone a second chance.  Please consider the fact that I have just told you, and upgrade my characterization of service to an honorable discharge.

Thank you.

Sincerely, 

P_ B_
[signed] 

[address and phone number omitted]”

Documentation

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

Character Reference Letter from J_ J_, dated July 26, 2004
Character Reference Letter from M_ B_, undated  (2 pages)
Character Reference Letter from C_ K_, undated
Customer Service Thank You Letter dated July 27, 2004
Course Summary dated July 20, 2004 (2 pages)
Academic Institution Course Record dated July 20, 2004
SMART Transcript Response Letter dated July 20, 2004
Transcript Authorization Receipt dated July 20, 2004
Certificate of Achievement (All Around Events) dated August 31, 2004
Certificate of Achievement (Attendance & Adherence) dated August 31, 2004
Certificate of Achievement (Idle) dated August 31, 2004
Certificate of Participation (San Diego CCC 2004 Olympic Activities) dated August 31, 2004

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	990427 - 000206	COG
	Active:  USN 			None

Period of Service Under Review:

Date of Enlistment:  000104		Date of Discharge:  040423

Length of Service (years, months, days):

	Active:    04  03  19
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 (24 month extension)

Education Level:  12			AFQT:  NA*

Highest Rate:  ET3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NA*		Behavior:  NA*		OTA:  NA*

Military Decorations:  None

Unit/Campaign/Service Awards:  National Defense Service Medal, Sea Service Deployment Ribbon, Battle “E” Ribbon, Armed Forces Expeditionary Medal, Meritorious Unit Commendation, Pistol Marksmanship Medal, Good Conduct Medal.

Days of Unauthorized Absence:  30

*Not Available

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:

031103:	Psychiatric Evaluation:  Applicant diagnosed Axis I:  Adj d/o with MDEC, Alcohol abuse, likely alcohol dependence.  Axis II:  Antisocial personality disorder.  Recommendation:  Applicant manifested a long-standing disorder of character and behaviors which is of such severity as to render him unsuitable for continued military service in the U.S. Navy.  Applicant judged to be significant risk to self or others if retained on active duty.

031113:	Applicant to UA.

031208:	Applicant missed sailing of vessel.

031212:	Applicant returned to military jurisdiction.

040105:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86:  Absence without authority; Charge II:  violation of the UCMJ, Article 87:  Missing ship’s movement; Charge III:  violation of the UCMJ, Article 92:  Failure to obey order or regulation; 
Charge IV:  violation of the UCMJ, Article 134:  Restriction breaking.
	Sentence:  Confinement for 25 days.
	CA action 040105:  Sentence approved and ordered executed.

040416:	Commander, Cruiser-Destroyer Group ONE authorized the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

The Service Record contains a partial Administrative Discharge package. 
The Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040423 by reason of misconduct due to a pattern of misconduct with a characterization of under other than honorable conditions (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 Board presumed regularity in the conduct of governmental affairs (D).

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 summary court-martial proceedings for violations of UCMJ Articles 86, unauthorized absence, 87, missing movement, 92, failure to obey an order or regulation, and 134 breaking restriction.  This misconduct resulted in a summary court-martial conviction and sentence of 25 days confinement.  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.

In the absence of a complete discharge package or service record, the Board applied the presumption of regularity in the conduct of government affairs.  Specifically, the Board presumed that the Applicant was awarded a nonjudicial punishment and a subsequent page 13 counseling/retention warning prior to his summary court-martial conviction in order to satisfy the requirements of a pattern of misconduct separation.  Additionally, the Board presumed that the Applicant was properly notified and processed by reason of misconduct due to pattern of misconduct, that he exercised his right to an administrative discharge board, that the Board carefully considered the facts of the case and concluded misconduct occurred, that separation was warranted and that an under other than honorable conditions discharge was an appropriate characterization of his service.  The Applicant bears the burden of overcoming this presumption of regularity through the presentation of substantial and credible evidence to support his issue.  The Applicant has submitted no documentation or other evidence to rebut the above presumption that he committed misconduct due to a pattern of misconduct and his service merited an under other than honorable conditions discharge.  In the absence of evidence to the contrary, the Board presumes that the Applicant’s discharge was both proper and equitable.  Relief denied.

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 could 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.  The Board received and considered all of the Applicant’s submissions, including his .  After careful consideration, the Board concluded the Applicant’s post-service achievements have been insufficient to mitigate his misconduct while in the Naval service.  Relief denied.

There is no requirement or law that grants recharacterization solely on the issue of enhancing employment or educational opportunities and this issue does not serve to provide a foundation upon which the Board can grant relief.  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 any additional 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), 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 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