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

  ex-SA, USN
Docket No. ND05-00470

Applicant’s Request

The application for discharge review was received on 20050126.  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.

Decision

A documentary review was conducted in Washington, D.C. on 20050511.  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:  GENERAL (UNDER HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

1.  “Dear Sir or Ma’am:

I am writing this letter to support Item 6 of the DD-293 Form I have filed.  I was administratively discharged in July of 1997.  I was sent to Captain’s Mast 3 times during my initial enlistment.  I am sure that you have records of my infractions, so I will not go into detail for the sake of brevity.  In simple terms, I was late to work on several occasions, and in one instance I had a lapse in judgment with regard to the way I spoke to a gate guard at another base.

In all cases, when I stood to answer for my wrongdoings, I did so in what I would characterize as a mature fashion.  I plead guilty for my transgressions, and accepted punishment for them with no complaint or attempt at appealing the decision  of the authority.

I guess this is the part where I am supposed to plead my case for why I should have my discharge upgraded to honorable.  I could have sought letters from politicians and other influential members of society, but this is something I must do on my own, so here it is:  In all 3 cases where I found myself standing before the Commanding Officer, I did so alone, with no legal counsel.  At the time, I was obviously very naïve in the ways of the military.  I had been misinformed and was under the impression that if I was to bring an attorney, it would be interpreted that I was attempting to escape the responsibility for my actions.  I sought the advice of parties who undoubtedly did not have my best interests in mind.  In simple terms, the only lawyers I spoke to were “sea lawyers”.  I don’t offer this as an excuse, just as information to support my request.

I would like to take the opportunity to offer some background information about myself.  My father was a Marine who served as an Embassy Guard in Southeast Asia.  My brother is a retired Marine, highly decorated from the Persian Gulf War.  I joined the United States Navy because I hoped to serve my country in the same tradition that they had, with dignity and distinction.  I could never accurately describe the pressure that I constantly felt on myself to stand out.  In many ways, I felt I had failed even before I finished basic training by not achieving any kind of milestones other than graduating.

I arrived at my first command, Amphibious Construction Battalion 2 in November of 1994.  Like so many other sailors, I found myself far from home at 19 years old.  I had a very close relationship with my family, so being so far away was something of a tough adjustment to make for me.  I had relied on my father and my brother for a lot of guidance, as they were the only other men in my family to serve in the military.  Once I arrived at my duty station, I had little to no contact with my family.  

I was very happy with the command I had been assigned to.  I had expressed interest to my recruiter about joining the Seabees, but he discouraged me with misinformation.  I chose to enter the Navy as an undesignated striker, figuring I would easily find a rate I would excel in after I got to the fleet.  After I had been at the command for a short period of time, I decided that I wanted to pursue one of the construction fields.  I was told that I would have to work very hard to distinguish myself as a candidate for advanced training, and put in a request to BUPERS.  I spent many of my off-hours working with the other battalions to obtain an impressive operator’s license.  I was the only non-rated Seaman to be qualified to operate all of the equipment in the command’s inventory.

I wound up in the all-too-common situation where I did well with one thing, and then one mistake destroyed everything I had worked towards.  The end result of too many infractions was of course the Commanding Officer’s decision to have me administratively discharged.  I can’t describe in words how that felt.  I was truly faced with the possibility that I could never go home.  I was told by the Administrative Officer that if I asked for a court-martial to try and avoid the discharge, that I risked being given an Other Than Honorable Discharge.  As I’ve stated before, I was completely alone in this situation.  I certainly couldn’t call home and ask for guidance, I would never be welcome to return.  I decided to take the advice of someone who very likely did not care about what became of me.  Put in simple terms, I was emotionally crushed, and I just rode out the final days of my naval career in virtual silence.  I was transferred to the Norfolk Naval Base for the remainder of my sentence.  I was placed in a barracks with men accused of drug offenses and stealing.  My offense was that I overslept too many times.

I have served a sentence far beyond what was given by the Commanding Officer that day.  It has been over 7 years since the day I was released.  I have never told a living soul the truth about why my naval career was 1 year shorter than I had enlisted for.  I have lived with the shame of my failure in silence, which I can only describe by comparing it to wearing a bag of bricks around my neck.  Every personal triumph in my life, every high point, every bit of good fortune has been overshadowed at one point or another because I have this skeleton in my closet.  The most joyous occasions eventually just fade into the shadow of my failure.

On September 11, 2001 I was detailed as part of a firefighting task force to New York City.  We were ordered to stand-by at the George Washington Bridge and await further orders.  My secret shame intensified.  I never felt more of a sense of duty to my country than I did that day.  But I can never serve in the military again, because I didn’t get it right the first time.  I know so many people who have been called back to duty, and as you read this are serving in the combat theater.  People who I knew when they were teenagers are coming back as combat veterans.  Please try to understand what it is like to not feel worthy to be in the same room as your friends because they served with distinction where I have failed.

In the years since I left the Navy, I have shown a steady record of employment.  I was employed by a police department as a 9-1-1 dispatcher for over 5 years, and now by a fire department in the same line of work.  I have left every job since the Navy on favorable terms with my employer.  I have maintained an exemplary attendance record, and have received numerous commendations for outstanding service.  I serve my community as a volunteer firefighter and EMT.

I am closing this letter with this thought – I am asking my country to forgive me for letting her down.  I never meant any disrespect; I just didn’t do the right thing.  Please allow me to set this right.

Respectfully submitted, 
(signed)
M_ S. M_  (Applicant)”

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Inactive: USAFR (DEP)	940311 - 940707	ELS (Refused to obligate)
	Inactive: USNR (DEP)	940729 - 940814	COG

Period of Service Under Review:

Date of Enlistment:  940815		Date of Discharge:  970716

Length of Service (years, months, days):

	Active:    02  11  02
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  78

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.25 (4)		Behavior:  2.25 (4)		OTA:  2.38  (5.0)
		  3.6   (1)			       3.6   (1)			3.6    (4.0)

Military Decorations:  None

Unit/Campaign/Service Awards:  RM, NDSM

Days of Unauthorized Absence:  None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

950829:	NJP for violation of UCMJ, Article 86:  Unauthorized absence.
	Specification:  In that SN M_ S. M_ (Applicant), on active duty, did, on or about 0645, 07 August 1995, without authority absent himself from his appointed place of duty, to wit:  Amphibious Construction Battalion Two, and did remain so until on or about 0705, 07 August 1995.  A period of about 20 minutes.
Award:  Forfeiture of $150.00 per month for 2 months (suspended for 6 months), restriction and extra duty for 20 days.  No indication of appeal in the record.

950829:	Retention Warning from Commanding Officer, Amphibious Construction Battalion Two:  Advised of deficiency (Repeated violations of unauthorized absences.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

970116:	NJP for violation of UCMJ, Article 86 (6 Specs):
Specification 1:  Unauthorized absence at 0645, November 19, 1996, without authority, absent himself from his organization, to wit:  Morning Quarters.
Specification 2: Unauthorized absence at 0645, November 20, 1996, without authority, absent himself from his organization, to wit:  Morning Quarters.
Specification 3: Unauthorized absence at 0645, November 21, 1996, without authority, absent himself from his organization, to wit:  Morning Quarters.
Specification 4: Unauthorized absence at 0645, November 22, 1996, without authority, absent himself from his organization, to wit:  Morning Quarters.
Specification 5: Unauthorized absence at 0645, November 26, 1996, without authority, absent himself from his organization, to wit:  Morning Quarters.
Specification 6: Unauthorized absence at 0645, November 27, 1996, without authority, absent himself from his organization, to wit:  Morning Quarters.
Violation of UCMJ Article 91: Insubordinate conduct towards a petty officer.
Violation of UCMJ Article 92: Failure to obey order.
	Award:  Forfeiture of $100.00 per month for 1 month, restriction and extra duty for 30 days, reduction to E-2 (suspended for 6 months).  No indication of appeal in the record.

970619:	Applicant notified of intended recommendation for discharge by reason of misconduct due to pattern of misconduct as evidenced by all punishments under the UCMJ in your current enlistment.  Applicant notified that if separation is approved the least favorable characterization of service possible is general (under honorable conditions).

970619:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation and to submit statements.

970619:	NJP for violation of UCMJ, Article 86:  In that SN M_ M_ (Applicant), U. S. Navy, Amphibious Construction Battalion Two, Little Creek, Virginia, on active duty, did, on or about, 0645, 10 June 1997, without authority, absent himself from his organization, to wit:  Morning Quarters at Amphibious Construction Battalion Two, located at Little Creek, Virginia, and did remain so until on or about 0650, 10 June 1997.  A period of about 5 minutes.
Violation of UCMJ, Article 117:  In that SN M_ M_ (Applicant), U. S. Navy, Amphibious Construction Battalion Two, Little Creek, Virginia, on active duty, did, on or about 03 June 1997, wrongfully use reproachful words, to wit;  “I’m not your F------ shipmate.”  Or words to that effect towards Petty Officer A_, U. S. Navy.
Award:  Restriction and extra duty for 35 days, reduction to E-2.  No indication of appeal in the record.

970716:	DD Form 214 issued.  Applicant discharge by reason of misconduct due to a pattern of misconduct with a general (under honorable conditions).

970721:	Commanding Officer, Amphibious Construction Battalion TWO, advised BUPERS of Applicant’s separation with a general (under 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 19970716 with a general (under 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.  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.  A general discharge is warranted for behavior not sufficiently meritorious to warrant an honorable discharge.  The Applicant’s service was marred by one retention warning and three nonjudicial punishment proceedings for violations of UCMJ Articles 86 unauthorized absence, 91, insubordinate conduct, 92, orders violation, and 117, provoking speech and gestures.  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.

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 14, effective 03 Oct 96 until 11 Dec 97), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – A 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