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

FOR OFFICIAL USE ONLY

ex-YNSN, USN
Docket No. ND05-01285

Applicant’s Request

The application for discharge review was received on 20050727.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions).  The Applicant requests a documentary record discharge review.   The Applicant designated the Pierce County Veterans Service Officer as the representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation by American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060406.  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 commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application: 

“Veterans is applying for VA Medical Benefits.  I believe my discharge was inequitable because it is based on one isolated incident.  Documentation of this incident is attached.

To Whom It May Concern:

My name is D_ J. C_(Applicant).  I am writing this letter in hope that you can over turn my discharge.  I am respectfully requesting that you over turn my discharge from an Other Than Honorable, to a General Under Honorable Condition.

While serving in the U.S. Navy, I served aboard the U.S.S. White Plains AFS 4.  On May 9, 1989, our ship was along side the U.S.S. Sacramento.  Our ship was taking on fuel; the engineering department was working on the fuel valve behind boiler 3.  They had the fuel valve taken apart for repairs.  On that day, major fuel oil leak, causing a main space fire.  Six of my friends died in that fire.  Suffering from severe depression, I didn’t really know what to do, were to go, or who to turn to for help.  I just kept everything to myself.  I reverted to drinking alcohol to hide my emotions I never realized what my drinking was actually doing to me, or those around me.  The main reason I was drinking is because of the nightmares that I was experiencing because of the main space fire aboard the U.S.S. White Plains.

I was released from Active Duty on November 4, 1992, from Naval Training Center, San Diego, Ca.  I was discharged for alleged abuse against D_ M_.

Since my discharge from active duty, I have changed my life.  I attended school to learn how to drive Tractor Trailers.  When I graduated school, I quit drinking.  The Department of Transportation Regulations (DOT) states that you cannot have a blood alcohol content of .02.  For that reason, I did not want to risk for what I had achieved, so I quit drinking alcohol completely.  That is when I started to realize that there was more to life than just drinking.

A couple of years later, I met my wife to be.  Her name is K_ M. C_, her maiden name was K_.  While I was dating K_, I joined the Volunteer Fire Department in the town of St Germain, Wisconsin.  Serving the community, started to give me positive feed back of doing the right thing, for people that I never thought that were in need of help.

Then something wonderful happened, my daughter K_ R. C_, was born on December 13, 1998.  I saw a blessing from god as my daughter was being born into this world.  I now have another child, and her name is A_ K. C_, she was born on May 26, 2002.  I have my wife and my two daughters in my life.  With the responsibility of taking care of my wife, and daughters, I do the best that I can to provide for their every need.

Just recently, I have been diagnosed with Diabetes Type I.  Federal Department of Transportation states, you are disqualified from driving a Commercial Vehicle while you have to take insulin by injection.  I was forced out of a profession I had been in for almost 9 years.

Since my diagnoses, I have regained my health, and found a different profession.  I currently work for Liberty National Mortgage.  I am also attending Itt Technical Institute to further my education in Computer Drafting and Design (CDD), to enter construction drafting when I graduate in June, 2007.  I also manage my Diabetes, along with being full time husband, and a full time father.

I have been married to my wife for seven (7) years, and to date, I have not consumed any alcohol.  My wife and I do not drink alcohol.  There is no temptation for either of us to consume any alcohol.  To date, I have not had an issue with anger management.  I’m still experiencing the nightmares to date, but I don’t drink to hide my emotions, I just keep the nightmares to myself.

Please see it in your heart to grant me an overture of an Other Than Honorable to a General Under Honorable Conditions Discharge.  Thank you for your time and consideration on this matter.

Sincerely;
[signed]
D_ J. C_(Applicant)”

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

Applicant’s DD Form 214
Incident/Complaint Report (3 pgs)
Investigative Report (2 pgs)
Voluntary Statement from F_ E. E_, dtd August 13, 1992
Character Reference ltr from K_ F_ (Aunt), dtd June 27, 2005
Character Reference ltr from K_ M. C_ (Wife) dtd July 18, 2005
Letter of Support from M_ G. B_, Pierce County Veterans Service Officer, dtd July 20, 2005
Letter of Appreciation dtd August 4, 1988
Letter from Applicant dtd July 18, 2005 (2 pgs)
Honorable Discharge Certificate dtd August 2, 1990
Enlisted Performance Evaluation Report
Letter from M_ G. B_, Pierce County Veterans Service Officer, dtd August 17, 2005
Letter from Applicant dtd August 16, 2005 (2 pgs)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	19851108 – 19851225		COG
	Active:   USN 			19851226 – 19900802		HON

Period of Service Under Review:

Date of Enlistment:  19900803		Date of Discharge:  19921104

Length of Service (years, months, days):

	Active:    02  03  02  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  none
	Confinement:		  none

Age at Entry:  23 

Years Contracted:  4 

Education Level:  12				AFQT:  32

Highest Rate:  YN3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.3 (3) 	Behavior:  3.2 (3) 		OTA:  3.60 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Sea Service Deployment Ribbon (4), Meritorious Unit Commendation, Pistol Marksmanship, National Defense Service Medal, Armed Forces Expeditionary Medal, Navy Expeditionary Medal, Southwest Asia Service Medal.

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

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

Chronological Listing of Significant Service Events: 

900803:	Reenlisted this date for a term of 4 years.

910214:	NJP for violation of UCMJ, Article 92 (2 specs).
	Specification 1: On or about 28DEC90, MBR disobeyed a lawful written order.
	Specification 2: On or about 06JAN91, MBR disobeyed a lawful written order.
	Award:  Forfeiture of $500 per month for 2 months, reduction to E-3 (suspended for 6 months).  No indication of appeal in the record.

910214:	Retention Warning:  Advised of deficiency (Applicant found guilty at CO’s NJP of Violation UCMJ Article 92: Fraternization.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920203:	Retention Warning:  Advised of deficiency (Substandard conduct, incident NR. one in the case of alcohol abuse.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920205:	Civil Conviction:  “San Diego Municipal Court for violation of CA VC 23103.5 Wet Reckless.”
Sentence:  Fined $500.00, 3 years probation, complete First Conviction Program/NADSAP, show proof 23MAR92.

920904:	NJP for violation of UCMJ, Article 128:  On or about 92AUG09, MBR did, at or near Newport ST Ocean Beach CA, commit assault by grabbing D_ M_ by her throat.
Award:  Forfeiture of $521 per month for 2 months (suspended for 6 months), reduction to E-3, oral admonition, restriction and extra duty for 45 days.  No indication of appeal in the record.

920904:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.

920904:	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.

920924:	Commanding Officer, Service School Command, San Diego recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.  Commanding Officer’s comments:  “YNSN C_ (Applicant) was processed for Misconduct due to Commission of a Serious Offense.  YNSN C_ (Applicant) assaulted his civilian girlfriend by grabbing her by the throat and hitting her head against the wall.  As this incident is the culmination of a series of infractions, YNSN C_ (Applicant) has no potential for further Naval Service and is not recommended for future service in any military organization.  I strongly recommend that YNSN C_ (Applicant) be separated from the Naval Service with an Other than Honorable Discharge.”

921020:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct commission of a serious offense

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19921104 by reason of misconduct due to commission of a serious offense (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).  

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 2 nonjudicial punishment proceedings for violations of Articles 92 (2 specifications) and 128 of the UCMJ. Additionally, the Applicant was issued 3 retention warnings for unhealthy hygiene, fraternization, and alcohol abuse.  He was convicted in San Diego Municipal Court for “wet reckless” driving. 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 his disciplinary problems were the result of stress caused by depression and alcohol abuse resulting from his experiences during a main space fire on USS White Plains.  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 is not warranted.

The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, 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, is considered.  The Applicant provided two letters of recommendation from his family members as documentation of his post-service.  The Applicant's efforts need to be more encompassing than those provided.  For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, evidence of drug free existence, and certification of non-involvement with civil authorities, in order for consideration for relief based on post-service conduct.  At this time, the Applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge.  Therefore, no relief will be granted.  

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.

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.  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 128, assault, and Article 92, failure to obey a lawful written order.

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