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

FOR OFFICIAL USE ONLY

  -MMFN, USN
Docket No. ND05-00843

Applicant’s Request

The application for discharge review was received on 20050413.  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.  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. area.  Applicant did not respond.

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/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

 “My discharge was inequitable because it was based on a series of events that built upon each other that resulted in my being victimized by attitudes and personal opinions.  My unauthorized absence that resulted in my discharge was a result of increased work conditioned stressful situations.  Several requests for time off and leave were denied.  Prior to this situation, my evaluations were above average to excellent.  Had the occurrences not happened, I believe I would have continued my Naval career to retirement with an honorable discharge.  The events mentioned above occurred after return from Operation Desert Shield.  Changes in my chain-of-command led to misinformed, pre-conceived opinions about my work ethics and performance from a division chief of another division that stood as interim division chief while my command was waiting for a replacement.  As a result, my work environment deteriorated; my leave requests were denied; my liberty was cancelled by persons in my chain-of-command that did not have the authority to do so; my work loads were unfairly increased; I was assigned watches I was over-qualified to stand repeatedly at unfavorable times (00-04) and was not assigned to stand watches at my level of qualification.  I was qualified to stand upper Level Watch and was repeatedly assigned to stand messenger watch while there was not a shortage of personnel qualified to stand these watches.  This caused repeated interruptions of my sleep cycle.  My stress level increased, and even counseling sessions with the ship’s chaplain resulted in any relief.  I used poor judgment and chose not to return from a brief leave so that I would not commit a more serious offense.  I returned on my own decision and turned myself in to the squadron office.”

Applicant’s Remarks, as stated on the application:

“Since my discharge, I have obtained an Associates of Arts degree in Nuclear Technology and a Bachelors of Science degree in Applied Physics.  I have gotten married and became a father.  I trained and tested to receive my license as a Fire Alarm Technician and Fire Extinguisher Technician.  I have obtained NICET certification in Fire Alarm Systems.  I am holding a steady job, have purchased a home, and have become a responsibility member of society.  I realize that I made poor decisions in my youth and did not use proper judgment.  I have been denied employment at a few businesses that I would have been a perfect fit but could not be used due to my discharge.  I respectfully request that the board consider my request to upgrade my discharge so that I may put this albatross behind me and not allow that poor judgment of my youth to adversely impact my family today.”

Documentation

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

Associate of Arts degree, dated July 31, 1995
Bachelor of Science degree, dated May 12, 2000
Fire Alarm Technician License
Certificate from National Institute for Certification in Engineering Technologies, valid through April 1, 2008

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	860606 - 860617	COG
	Active:   USN			860618 - 880705	HON

Period of Service Under Review:

Date of Enlistment:  880706		Date of Discharge:  920402

Length of Service (years, months, days):

	Active:    03  08  27
	Inactive:  None

Age at Entry:  20			Years Contracted:  6

Education Level:  12			AFQT:  94

Highest Rate:  MM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.1 (5)		Behavior:  3.2 (5)		OTA:  3.4

Military Decorations:  None

Unit/Campaign/Service Awards:  GCA, SSDR, NDSM, SASM

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

880706:	Applicant reenlisted for 6 years.

900228:	Retention Warning:  Advised of deficiency (Applicant has demonstrated financial irresponsibility by failing to pay his just debts thus causing creditors to contact your command and by maintaining insufficient funds to cover personal checks on four occasions.) Notified of corrective actions and 

assistance available, advised of consequences of further deficiencies, and issued discharge warning.

900509:	Retention Warning:  Advised of deficiency (Applicant has demonstrated financial irresponsibility by failing to pay his just debts thus causing creditors to contact your command and by maintaining insufficient funds to cover personal checks on numerous occasions).  Notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

900720:	Applicant advised did not meet the body fat standards due to dietary indiscretions.

900918:	Applicant issued a substandard service letter for below acceptable standards.

901025:	Applicant acknowledged receipt of letter of substandard service.

910314:	Applicant enrolled in the Command Physical Readiness Program.

910814:	Applicant enrolled in the Command Physical Readiness Program.

911108:	NJP for violation of UCMJ, Article 86: Failure to go to place of duty, violation of UCMJ, Article 91: Disrespect, violation of UCMJ, Article 113: Misbehavior of a sentinel.
	Award:  Forfeiture of $250 per month for 2 months, restriction for 30 days, reduction to E-4.  No indication of appeal in the record.

911230:	Applicant to unauthorized absence 0700, 911229.

920102:	Applicant missed ship’s movement.

920111:	Applicant from unauthorized absence 1826, 920111 (14 days/surrendered).  Applicant’s EAOS changed to 940520.

920210:	Applicant returned to USS SURIBACHI (AD-21)

920214:	NJP for violation of UCMJ, Article 134 (5 specs): (1) Obtaining services under false pretenses, (2-5) Worthless checks, violation of UCMJ, Article 121: Larceny, violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ, Article 87: Missing movement.
	Award:  Forfeiture of $500 per month for 2 months, restriction and extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.

 

920217:	Applicant notified of intended recommendation for discharge by reason of misconduct due to the commission of a serious offense.  The Applicant is advised that the characterization of service may be Under Other Than Honorable Conditions.

920217:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

920218:	Commanding Officer, USS SURIBACHI (AD-21), recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

920224:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

920310:	Applicant to unauthorized absence 0745, 920310.

920311:	Applicant from unauthorized absence 0745, 920311 (1 day/surrendered).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW
Discussion

The Applicant was discharged on 19920402 under other than honorable conditions for misconduct due to commission of a serious offense (A). 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 (B and C). 

The Applicant contends that his discharge was inequitable as it was based upon “a series of events that built upon each other that resulted in my being victimized by attitudes and personal opinions” While he may feel that he was mistreated by his command and that this was the underlying cause of his misconduct, the record clearly reflects his service record, was marred by:

•	Two retention warnings for financial irresponsibility (19900228 & 19900509)
•	Letter for substandard service (19900720)
•	Non Judicial punishment (19911108) for violations of UCMJ
o	Articles 86: (failure to go to place of duty) 
o	Article 91: (disrespect) 
o	Article 113: (misbehavior of a sentinel).
•	 Non Judicial punishment (19920228) for violations of UCMJ 
o	Article 134 (5 specs): (1) Obtaining services under false pretenses, (2-5) Worthless checks
o	Article 121: Larceny 
o	Article 86: Unauthorized absence (14 days)
o	Article 87: Missing movement 

Articles 87 (missing movement), 113 (misbehavior of a sentinel), 121 (Larceny), and 134 (obtaining services under false pretenses) are considered serious offenses. Theses offenses warrant punitive discharges if adjudged at a Special or General Court Martial. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The Applicant on 19920217 was provided the opportunity to present his case to an administrative board, but waived that right, thus accepting the discharge recommended in the letter of notification.  Relief denied.  

The Applicant states that his unauthorized absence was a result of stressful working conditions. The NDRB recognizes that serving in the U.S. Navy is challenging.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  It must be noted that most members of the Navy serve honorably and therefore earn their honorable discharges.  In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure 
that undeserving Sailors receive no higher characterization than is due.  The NDRB found that the Applicant's service was equitably characterized.  Relief denied.

 The Applicant contends that he was young and immature and that aspects of his post-service conduct, to include continuous employment, professional development, and a stable family life, should be considered in the recharacterization of his discharge. 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 the service.  The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. After a complete review of the documentation submitted by the Applicant, including the Associates of Arts degree (Nuclear Technology), Bachelor of Science degree, Fire Alarm Technician License, and Certification in Engineering Technologies, the Board determined that the evidence of post-service conduct was found not to mitigate the conduct for which he was discharged. Examples of other documentation that should be provided to the Board include verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. 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), effective 15 Aug 91 until 
04 Mar 93, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

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. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Articles 87 (missing movement), 113 (misbehavior of a sentinel), 121 (Larceny), and 134 (obtaining services under false pretenses) if adjudged at a Special or General Court Martial 

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