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

FOR OFFICIAL USE ONLY

   ex-AR, USNR
Docket No. ND05-00777

Applicant’s Request

The application for discharge review was received on 20050328.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable or general/under honorable conditions.  The Applicant requests a documentary record discharge review. In the acknowledgement letter, the Applicant was informed that he was approaching the 15-year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington, D.C. Metropolitan area.  The Applicant elected to have a record review instead of a personal appearance.  The Applicant listed the Disabled American Veterans as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050908.  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/Misconduct - Pattern of Misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

 “I am requesting an upgrade because I felt that the recruiter mislead me and while serving I felt I did serve honorably.  In review of the the awards I did participate with my unit and felt I did my work with respect and honor.  I was very disappointed and discouraged with the misinformed information I was given and I only did what I was told to do.  Please consider the Sea Service Deployment Ribbon, National Defense Service Medal, SW Asia Service Medal, the w/2 Bronze Stars and the Navy Unit Commendation as part of the honors for an upgrade.  Thank you 
See attached letter 1 and supplemental letter 2  [Listed as supporting document]”

Attached letter:

“Honorable Representatives of the Department of Defense

I never actually got the opportunity to explain my military conduct.  It was based on a recruiting officer giving me false information.

Prior to graduating in 1989 from Opelousas Catholic High School one of the local recruiting officers spoke with senior about joining the military (Navy).  I had been offered a partial football scholarship at Tuskegee University but would have preferred a basketball scholarship.  I spoke with the officer about my plans but was persuaded to join the Navy and was told that I could play basketball for the Navy team.  He advised mc once I got to the base went through basic to just advise officers there that I wanted to play basketball for the Navy.  I did not look into anything further except take his word.  I was 17 years old, naïve, did not think of any kind of contract to that affect.  It didn’t at all happen that way once I got there.

Several times when I returned home, my father and I went to talk with this recruiter about what he’d told me and it was not happening, what should I do? He advised me to be late when returning to the base.  I would then be taken before a board, given a representative And at that time I should tell them I joined specifically to play basketball for the Navy.  Another time he told me to tell them about a breach of contract.  Very bad advise from someone I trusted.

I have been haunted for over 14 years with the fact that I received an, other than honorable discharge.  I know that I did my job and served my country honorably while in the Navy.

Because of recruiting officers as he lots of young men/women felt betrayed and because of that it’s kept many from joining the military.

I don’t regret joining because it was a great experience but I’ve often time wondered where I would be today had I taken the football scholarship.

I have a family history of our men sewing in every branch of the military.  My great-great uncle, my grandfathers, my uncles and my dad, who was a combat Vietnam US Marine veteran all served and received honorable discharges.

Due to misleading information by an incompetent recruiter it has caused a great blemish on my record.

I would greatly appreciate if the board of review would consider an upgrade from other than honorable conditions to General or Honorable discharge.

With best wishes,

[signed]

H_ O. R_ [Applicant]”

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

 “Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Other Than Honorable Discharge to that of General Under Honorable Conditions.

The FSM served on active service from November 6, 1989 to November 27, 1991 at which time he was discharged due to Misconduct - Pattern of Misconduct. 

On review of the documentation provided the Applicant states he believes the discharge is improper as he was acting in accordance with the instructions as provided by his Recruiter, both before and during active service. That he performed his duties honorably and that the poor conduct was based on the instructions of his Recruiter to obtain the duty the Applicant desired.

This creates a need for a review of the application of the standard, for the Board to determine that the Applicant’s discharge was improper. The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted. See, SECNAVIST 5420.174 D, Sect. 407, part 3

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the Applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174D.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision, after a review of the entire packet to include the character references, provided by the Applicant.  These issues do not supersede any issues previously submitted by the Applicant.

Respectfully,”

Documentation

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

Letter from Applicant’s mother, dated March 17, 2005
Letter from Applicant’s mother, dated October 25, 2004
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: None
	Active:   None

Period of Service Under Review:

Date of Enlistment:  890321			Date of Discharge:  911127

Length of Service (years, months, days):

	Active:    02  00  22	Does not exclude lost time
	Inactive:  00  07  14

Age at Entry:  17  (Parental Consent)	Years Contracted:  8
		   
Education Level:  12				AFQT:  32

Highest Rate:  AA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.50 (2)		Behavior:  3.00 (2)		OTA:  3.10

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, NDSM, SASM with 2 Bronze Star, NUC

Days of Unauthorized Absence:  96

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Pattern of misconduct, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

891106:	Applicant reported for 36 months of active duty under the Active Mariner Program.

900902:	Applicant to unauthorized absence.

900920:	Applicant from unauthorized absence (18 days).
901002:	Applicant to unauthorized absence 0545, 901002.

901003:	Applicant from unauthorized absence 0700, 901003 (1 day/surrendered).  Applicant’s EAOS changed to 921214.

901005:	Applicant to unauthorized absence 1300, 901005.

901010:	Applicant missed ship’s movement.

901029:	Applicant from unauthorized absence 2040, 901029 
	(24 days/surrendered).

901116:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 86 (3 specs):
	Specification 1: Unauthorized absence from 900902 to 900922.
	Specification 2: Unauthorized absence from 901002 to 901003.
	Specification 3: Unauthorized absence from 901005 to 901029.
	Charge II: violation of the UCMJ, Article 87:
	Specification: Missed ship’s movement on 901010.
	Finding: to Charge I and II and the specifications thereunder, guilty.
	Sentence: Forfeiture of $482.00, confinement for 30 days.
	CA action 901116:  Sentence approved and ordered executed.

901116:	Applicant to confinement.

901120:	Retention Warning from USS AMERICA (CV 66): Advised of deficiency (Unauthorized absence from 900902 to 900921, 901002 to 901003, 901005 to 901029 and missed ship’s movement on 901010.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

901210:	Applicant from confinement.

901224:	Applicant to unauthorized absence 0545, 901224.

901228:	Applicant from unauthorized absence 0900, 901228 (4 days/surrendered).  Applicant’s EAOS changed to 921228.

910511:	Applicant to unauthorized absence 0600-1530, 910511.

910603:	Applicant to unauthorized absence 0630, 910603.

910604:	Applicant from unauthorized absence 1345, 910604 (1 day/surrendered) at TPU NAVSAT Norfolk, VA.  Applicant EAOS changed to 921229.

910614:	Applicant returned on board USS AMERICA at 1430, 910614.

910630:	Applicant to unauthorized absence 0700, 910630.

910710:	Applicant from unauthorized absence 2300, 910710 (10 days/surrendered).  Applicant’s EAOS changed to 930108.

910801:	Applicant to unauthorized absence 0600, 910801.

910821:	Applicant missed ship’s movement.

910831:	Applicant declared a deserter.

910909:	Applicant from unauthorized absence 0100, 910909 (38 days/surrendered).  Applicant’s EAOS changed to 930216.

911009:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 86 (3 specs):
	Specification 1: Unauthorized absence from 910603 to 910604.
	Specification 2: Unauthorized absence from 910630 to 910710.
	Specification 3: Unauthorized absence from 910801 to 910909.
	Charge II: violation of UCMJ, Article 87:
	Specification: Missed ship’s movement on 910821.
	Finding: to Charge I and II and the specifications thereunder, guilty.
	Sentence: Forfeiture of $501.00, confinement for 30 days, reduction 
to E-1. 	CA action 911018:  Sentence approved and ordered executed.

911009:	Applicant to confinement.

911018:	USS AMERICA (CV 66) notified Applicant of intended recommendation for discharge by reason of misconduct due to commission of a serious offense as evidenced by your summary court-martial of 911009. The characterization of your service may be under other than honorable conditions.

911029:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

911115:	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.

911120:	BUPERS 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 19911127 under other than honorable conditions for misconduct due to a pattern of misconduct (A and B). The Board presumed regularity in the conduct of governmental affairs (C). 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 (D and E).

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:

•	One retention warning (901120):
o	Violation of the UCMJ, Article 86 (3 specs): 
•	UA from 900902 to 900921, 901002 to 901003, and 901005 to 901029 
o	Violation of UCMJ, Article 87: Missed ship’s movement on 901010

•	Two Summary Court-Martials: 
o	901116: violation of the UCMJ, Article 86 (3 specs):
•	UA from 900902 to 900922, 901002 to 901003, and 901005 to 901029
o	Violation of UCMJ, Article 87: Missed ship’s movement on 910821

o	911009 (violation of the UCMJ, Article 86 (3 specs):
•	UA from 910603 to 910604, 910630 to 910710, and 910801 to 910909
o	Violation of UCMJ, Article 87: Missed ship’s movement on 910821

Violations of Articles 86 and 87 are considered serious offenses and constitute a pattern of misconduct. Violations of these articles would typically warrant a punitive discharge if adjudged at a special or general court-martial. 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 misconduct was the result of feeling used and neglected over alleged misrepresentations by his recruiter. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that the recruiter misled him through the recruitment process. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. However, even if the Applicant could show misrepresentations in the recruitment process, such misrepresentations would neither amount to a justification nor to a defense for the Applicant’s own misconduct. 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. 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. 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, effective 15 Aug 91 until 
04 Mar 93), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – A PATTERN OF MISCONDUCT. 

B.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 86, for unauthorized absence (for a period in excess of 30 days]) and Article 87, missing movement, if adjudged at a Special or General Court-Martial.

C.  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.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

E.  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