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

FOR OFFICIAL USE ONLY

 ex-ETSN, USN
Docket No. ND05-01102 

Applicant’s Request

The application for discharge review was received on 20050623.  The Applicant requests the Discharge 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 designate a representative on the DD Form 293.  Subsequent to the application the Applicant obtained representation from the Disabled American Veterans.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060209.  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 by reason of misconduct due to a pattern of misconduct.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application and/or attached document/letter:

“To whom it concerns,

When I joined the Navy there were three words that were ingrained into our heads.  I did my best to hold up to those three words, but they Navy showed me that they do not.  What kind of organization is it that will let their people run around acting like they are the stars on the TV show Jackass and do nothing about them?  And to those who do try to do the right thing, meaning myself, get slammed and left on the curb with nothing?  I did my job when I was in the Navy; In fact, I did above and beyond my job as stated in my Eval’s.  But you can’t learn everything about a person’s career by just black and white.  Yeah, I did go to Capt’s Mast - but does it say anywhere in there the real reason as to why? It burns me up when I think of those three words now.  I had the courage to stand up to those who did not follow Navy’s Values.  I had the commitment to carry on - to a point I’ll say - through all the crap that two individuals put me through.  And, it is my hope that you will see that I did serve Honorably.  There is an email that was forwarded back to me from the XO of the Chancellors Ville that contains the majority of the information as to what led me to my actions to end my Naval career.  I reread it briefly - it’s been years since I wrote it.  I should probably rewrite it, but I’ve been trying for years to forget it and I do not care to remember any part of it.  I will say that I have absolutely no faith in getting what I am asking for.  I’ve become very used to going to people in positions of power for help and getting only a cold shoulder in return, But for what it is worth, I will fill in the gaps from the time I was left C’ville until now.  When I arrived onboard the Ticonderoga, things were fine for me for a while.  I was able to move on from what happened to me, but I still wasn’t able to forget.  My feelings moved from anger at those who did these acts against me to those who should have done there jobs and stopped or punished them.  But like when I was at the C’ville, I just suppressed my feelings and did my job the best that I could.  You cannot know what it feels like.  All these memories that I have.  Superiors on both ships angry with me because I was causing trouble for them even though I was attempting to do the right thing and get some kind of justice.  That is what has escaped me for so long - not just my Honor, but justice.  There isn’t such a thing for people like me, not when I’m standing alone fighting back against people who are in positions of power over me.  Those people I have listed in my forwarded email from the C’ville’s XO.  Anyways, when I enlisted in the Navy, it was my intention for people to remember my name and say what a hard worker I was or what an example of what a sailor should be.  Had I known what was going to happen to me while I was in the Navy, I would never have joined.  It was a pointless battle for me to get some kind of Justice against Kosher and Figueroa, and now it seems like it’s going to be pointless in trying to get my Honor back from the Navy.  You might’ve had the same high expectations of the Navy as I did when I joined, but you don’t have my memories, my sleepless nights, my unending anger at being unable to do anything about what happened to me while I was in the Navy.  So I’m back on the Ticonderoga and a friend of mine from C’ville is now serving onboard.  I asked him if he knew if anything happened to Kosher.  Turns out he got a COM for being such a great and outstanding sailor.  After all those years of suppressing my feelings and continually doing my job and all aspects of Navy life, I finally just lost it, There is really so much weight one person can carry on their backs before they completely and totally cave in.  And I did.  After all those years of being a model sailor, as my eval’s said, I became what I never wanted to be - a burden to others.  I couldn’t help it...  you just can’t imagine it.  Hearing that Kosher got that COM to me was like hearing the man who got caught red-handed after he butchered your family get a presidential pardon and the winning numbers to the power ball.  Sounds like that analogy is a little reaching? Try being in a completely depleted state of mind.  One where there is no longer any hope for anything at all.  You just don’t know.  I think this was just about my apex of depression. All though I’m not exactly walking on clouds right now either.  There are days now where I can feel good about myself, but those happen as often as Federal Holidays.  Anyways, it got so bad that I checked myself into Kessler Air Force Base Mental Health Division.  The command at Ticonderoga never referred me to it, I learned about it from a guy at the Naval Family Health place in Pascagoula, MS.  The Ticonderoga command has said, at least to me, that they tried to do everything they could to help me.  In short, they did do more for me than C’ville by way of letting me go.  They were initially unhappy that T went to Kessler, but agreed to it anyways.  All I can say about the ‘professionals’ at Kessler is that that I was not surprised when I heard on CNN several months later that despite the best efforts of the military mental health clinic, they could do nothing to help the soldiers in Iraq.  I only say this because some of the Air Force officers told us; it was a group thing that they would be leaving for Iraq.  I don’t have a degree in psychology or anything like that, but I do understand the meaning of ‘walk a mile in someone else’s shoes.’  So what would you have done had you been in my shoes? I teetered on the edge for the vast majority of my career because of those people.  But I did what I had to keep myself together.  I did this mainly by telling myself over and over that some day I will get through all of it and it will all be behind me.  And it’s not.  My Honor is very important to me.  It was never my intention to one-day say; fuck it, after five years I’m out!  I wanted to do my time, do my job, have some fun, see the world, and then leave Honorable.  That was all.  That was all I thought I would have to do, but instead I ended up being two malicious fucks target of ha fun and watched, as my command would do nothing.  I still do not understand the point of military training on fraternization and harassment.  Not after the shit I had to go through.  The last thing that I want to say is that I hope that you can tell by my records that if I had not served with Kosher or Figueroa, or on C’ville for that matter, that I would not be writing you this letter at all.  I would’ve filled my obligation and received my Honorable discharge, my NCIF, my MGIB, and all the VA benefits that I would’ve got.  Thanks allot.  Thanks for ruining my life and giving me five of the worst years of my life.

Waiting for your rejection,

J_ A.  B_(Applicant)

One last thing that I want to point out.  On the Chronological Record of Medical Care, Standard Form 600 there is something that I would like you to take special interest in.  Could you look at question ten.  I thought that would have given me some form of help...I guess it was just overlooked like everything else.”

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 Under Other Than Honorable Conditions discharge to Honorable.

The FSM served on active service from November 10, 1998 to January 16, 2004 at which time he was discharged due to Misconduct, due to a pattern of misconduct.

The FSM makes his contentions on application and shares his belief as to the turn of events and their creation of the appearance as a burden and problem sailor. His personnel records reflect an above average sailor with over five years of active duty.

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 believe that insufficient consideration is shown in regards to the Applicant’s character of discharge. A discharge is a summary of an individual’s character and skill during their period of active military service. When the record is reviewed it shows that, yes the FSM did have character issues that may or may not have been at his own fault, but it also reflects an above average sailor that believed in the work he was performing, and when in the performance of those duties was a credit to the uniform. It is because of this that we maintain that the current character of discharge is to harsh when compared to the overall record of service and that a General Under Honorable Conditions discharge would more appropriately reflect the quality of service as shown by the record.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the Applicant.

Respectfully,”
K_ L.  G_
Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

E-mail, dtd March 17, 2003 (8 pages)
Evaluation Report and Counseling Record, dtd May 5, 2000
Evaluation Report and Counseling Record, dtd March 7, 2001
Evaluation Report and Counseling Record, dtd July 3, 2001
Evaluation Report and Counseling Record, dtd July 2, 2002
Evaluation Report and Counseling Record, dtd March 5, 2003
Alcohol and Drug screening report, dtd July 9, 2001 (2 pages)
Patient and family education and needs assessment, dtd July 9, 2001
Certificate of completion for Electronics Mechanic, dtd August 20, 2003
Navy and Marine Corps Achievement Medal certificate, dtd July 15, 2002
Personnel Qualifications Standards, NAVPERS 1070/604
Awards page
Letter of appreciation, dtd June 28, 1999
Montgomery GI Bill DD Form 2366, dtd November 16, 1998
Enlistment guarantees, dtd April 30, 1998
Applicant’s DD Form 214
Hometown Journal, dtd June 28, 2005 (Front page article written by Applicant)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USAR	199512XX - 199704XX	
		USNR (DEP)	19980430 - 19981109	COG
	Active:    None
Period of Service Under Review:

Date of Enlistment:  19981110		Date of Discharge:  20040116

Length of Service (years, months, days):

	Active:    05  02  07
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  22

Years Contracted:  4 (24 month extension)

Education Level:  12				AFQT:  78

Highest Rate:  ET3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.2 (5)			Behavior:  3.9 (5)		OTA:  3.69

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Sea Service Deployment Ribbon (2), Navy and Marine Corps Overseas Service Ribbon (2), Meritorious Unit Commendation Ribbon, National Defense Service Medal, Battle Efficiency Ribbon (2), Navy and Marine Corps Achievement Medal

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority:  MILPERSMAN, Article 1910-140 (formerly 3630600).

Chronological Listing of Significant Service Events:

980430:	Pre-service waiver for 1 non-minor misdemeanor (DUI) and DEP discharge granted.

000312:	Applicant assigned a “Drunk Watch” due to alcohol intoxication.

000321: 	ETOH screening. Applicant seen by alcohol counselor at Naval Hospital Yokosuka based on Command concern and assignment of a Drunk Watch. Applicant not diagnosed as an abuser of alcohol or dependent. Recommendation:  Attend level 0.5 IMPACT.  

000407:	Applicant prescribed Antabuse medication in conjunction with his attendace of IMPACT.

010702:	NJP for violation of UCMJ, Article 134: (Drunk and disorderly).
	Date of offense: 010630.
	Award:  Forfeiture of $750.30 per month for 2 months, restriction and extra duty for 45 days (suspend fifteen days), reduction to E-3 (suspended for 3 months.  No indication of appeal in the record.

010709: 	Applicant seen at USNH Yokosuka by an Alcohol counselor based on an incident of drunk and disorderly. Diagnosed as an alcohol abuser and dependent. Recommendation: Level II Out patient Treatment for Alcohol Abuse.
010821: 	Applicant completes ASAM Level II Out patient Treatment for Alcohol Abuse.

030920:	NJP for violation of UCMJ, Article 86:  (Unauthorized absence).
Violation of UCMJ, Article 91: (Insubordinate conduct).
Date of Offense:  030904.
	Award:  Restriction and extra duty for 15 days, reduction to E-3 (suspended for 6 months).  No indication of appeal in the record.

030920:	Retention Warning:  Advised of deficiency (Violation of UCMJ Article 86:  Unauthorized absence.  Violation of UCMJ Article 91:  Insubordinate conduct.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

040115:	Commander, Naval Surface Group TWO 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 20040116 by reason of misconduct due to a pattern of misconduct (A and B) with a service characterization of under other than honorable conditions.  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).  The Board presumed regularity in the conduct of governmental affairs (E).

The Applicant seeks an upgrade in his discharge to honorable. The Applicant contends that there were mitigating circumstances (i.e. incidences of sexual assault and verbal abuse), which led to the periods of unauthorized absences, nonjudicial punishments, and counseling entries in his service record.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  The Board found no such error or inequity to have occurred during that time.  Further, the NDRB found credible evidence of misconduct in the service record of the Applicant.  This misconduct did warrant processing for separation as initiated by the Applicant's command.  The two nonjudicial proceedings for violations of Article 134(drunk and disorderly), Article 86 (unauthorized absence), Article 91 (insubordinate conduct), and the retention warning for violations of Article 86 and 91, all indicate the propriety and equity of the discharge process. 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 Board found that the Applicant’s discharge characterization accurately reflects his service to his country.  Relief is denied.

The Disabled Veterans representative on behalf of the Applicant contends that the current character of discharge is too harsh when compared to the overall record of service and that a General Under Honorable Conditions discharge would be more appropriate. The NDRB advises the Applicant, 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 violation of Article 86, 91, and 134 are considered serious offenses and typically warrant a punitive discharge if adjudged at a special or general court-martial. While the NDRB respects the fact that the Applicant had good performance marks and had some commendatory accomplishments, the Board found that it did not sufficiently mitigate his misconduct, and that his service was equitably characterized as being performed under other than honorable conditions. Relief is denied.

The Applicant contends that he never received the recommended alcohol treatment as stated on his Chronological Record of Medical Care, Standard Form 600 (USNH Yokosuka Alcohol and drug screening report dtd 09 Jul 01).  While the Applicant may feel that the Navy or his command didn’t assist or “overlooked” his problem, the evidence of record showed the following:

•	06APR00 – Applicant attends 0.5 IMPACT Treatment.

•	07APR00 – Applicant received Antibuse prescription.

•	09JUL00- Applicant screened Alcohol Programs Department: Recommendation to attend ASAM level 2, Intensive Outpatient Treatment for Alcohol abuse.

•	21AUG01- Applicant completes ASAM level 2, Intensive Outpatient Treatment. Applicant placed in ASAM level 0.1 Outpatient Treatment Program for four weeks.

The board found that the Applicant’s allegations that he was denied help and rehabilitative treatment unsubstantiated. Relief is denied.

The NDRB advises the applicant that his service record is missing elements of the administrative discharge package. In the Applicant’s case, the Board presumed regularity in the conduct of governmental affairs and that the Applicant’s discharge was regular in all respects.

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 additional evidence related to this discharge.  Representation at a personal appearance hearing is recommended but not required.

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  
As of this time, the Applicant has not provided sufficient post-service documentation for the Board to consider.  Relief denied.

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.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 134(drunk and disorderly), Article 86 (unauthorized absence), and Article 91 (insubordinate conduct). 

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.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.  

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