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

FOR OFFICIAL USE ONLY

ex-SA, USN
Docket No. ND06-00524

Applicant’s Request

The application for discharge review was received on 20060210.  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 personal appearance hearing before the Board in the Washington, D.C. Metropolitan area.  The Applicant did not designate a representative on the DD Form 293.  Subsequent to the personal appearance hearing, the applicant requested a documentary discharge review and obtained representation from the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20061214.  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.

The NDRB did note administrative error(s) on the original DD Form 214.  Block 24, Character of Service, should read:  “UNDER OTHER THAN HONORABLE CONDITIONS.”  The Commander, Navy Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“My discharge was unfair and equitable considering the regulation in the effect of my discharge.  The command took me to Captain’s Mate three times in which one case was dropped because of insubstantial evidence.  One was on 20NOV01 UCMJ, Art 86.  Unauthorized absence.  Second one was UCMJ, Art 134, Reckless Endangerment Spraying a silicone lubricate onto the handrails of the boatswain locker.  But I tell you that I did not do that action there was a other sailor that was down at the locker and he was the one who did that action.  I was just next to him in the locker and the when the Chief came down the hand rails and said who did this the sailor that was next to me said he did it!  And since I was mark as a troublemaker with out question the Chief wrote me up and told the Captain that he should kick him out of the Navy.  The Command was aware of the personal problems and issues I was having with my wife at the time, but refuses to take action in helping me.  Since my discharge all I wanted to do is get back in the service.  I was young and immature at that time I was only 18 yrs. Old but I have mature since than I’m 24 yrs. older, Responsible, Dependable and a father of two.  Who has been trying to put all of this behind and putting my life back on track.”

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

“Equity Issue: Based on our review of evidentiary record and on behalf of this former member, we request that the Board also consider provisions of SECNAVINST 5420.174D, Part V, Paragraph 503, as it pertains to post-service conduct, in assessing the merits of this application.

In accordance with Title 32, CFR, Section 724.116 and SECNAVINST 5420.174D, Part I, Paragraph 1.20, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue(s) and following statement in supplement to the Applicant’s petition.

Review of the service records reflect that this former member earned the NDSM. He was awarded NJP on 011120 for VUCMJ, Articles 86, 92, 117 and awarded NJP on 020606 for VUCMJ, Article 134. Following due process notifications, he was discharged Under Other Than Honorable Conditions due to the misconduct as authorized by NAVMILPERSMAN, Article 1910-146.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because he was innocent of the charges that he was found guilty of at NJP on 020606 and because martial problems impaired his ability to serve. We further opines that he is more mature now and would like to have another opportunity to serve his country in the military. He has not submitted any additional documentation for consideration.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised. To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by Title 10, USC, Section 1553 and set forth in Title 32, CFR, Part 724 and SECNAVINST 5420.174D.

This case is now respectfully submitted for deliberation and disposition.”

Applicant’s Remarks:  (Taken from the DD Form 293.)

“If there is anything else you need please don’t hesitate to call me or send me a e-mail. Thank you very much.”

Documentation

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

Applicant’s DD Form 214
Request for information document, received 10 Apr 06
Applicant request for Personal Appearance Hearing, dtd 28 Feb 06

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20010119 - 20010130	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20010131		Date of Discharge:  20020702

Length of Service (years, months, days):

	Active:    01  05  02  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  30 days

Age at Entry:  18

Years Contracted:  4

Education Level:  12				AFQT:  32

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NA*				Behavior:  NA*		OTA:  NA*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal

* Not Available

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: 

010730:	Addiction Treatment Facility, Gulfport:  Applicant referred for screening due to drunk and disorderly (x2). First incident member was caught by civilian authorities for underage drinking and in the second incident the member struck a shipmate in a fit of anger after consuming six beers. Diagnosis Impression:  Alcohol abuse.  ETOH abuse to R/O dependence.  Recommendation: Outpatient treatment.  Licensed Independent Practitioner recommends outpatient treatment.

010809:	Physical examination for Branch Medical Clinic Gulfport Addiction Treatment Facility: Applicant pending Captain’s mast. Member involved in an ETOH incident x3 wks ago. Impression: ETOH dependency.  Cleared for outpatient treatment.

011120:	NJP for violation of UCMJ Articles 86, 92, and 117.
Charge I: violation of UCMJ, Article 86 - Failing to go or leaving place of duty.
	Specification 1: In that Seaman Apprentice J_ E. V_ (Applicant), U.S. Navy, USS Bulkeley, at sea, did on or about 18 November 2001, without authority, fail to go at the time prescribed to his appointed place of duty, to wit:  1200-1700 helm watch.
	Charge II: Violation of UCMJ, Article 92 - Failure to obey other lawful order.
Specification 1: In that Seaman Apprentice J_ E. V_(Applicant), U.S. Navy, USS Bulkeley, at sea, having knowledge of a lawful order issued by BM2 W_, to stand the 1200-1700 helm watch, an order which was is duty to obey, did on or about 18 November 2001, fail to obey the same by wrongfully not assuming the helm watch.
Specification 2: In that Seaman Apprentice J_ E. V_(Applicant), U.S. Navy, USS Bulkeley, at sea, having knowledge of a lawful order issued by Commander D_ T_ to report to the pilot house, an order which it was his duty to obey, did onboard USS Bulkeley, on or about 18 November 2001, fail to obey same by wrongfully failing to report when ordered to do so over the ship’s 1MC loudspeaker.
Charge III: Violation of UCMJ, Article 86 - Failing to go or leaving place of duty.

Specification1: In that Seaman Apprentice J_ E. V_(Applicant), U.S. Navy, USS Bulkeley, Norfolk, VA, did on or about 20 November 2001, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: duty section four (4) 0730 muster.

Charge IV: Violation of UCMJ, Article 117 - Provoking speeches or gestures.
Specification 1: In that Seaman Apprentice J_ E. V_(Applicant), U.S. Navy, USS Bulkeley, Norfolk, VA, on or about 20 November 2001, wrongfully use provoking and reproachful words, to wit: “ can’t stand this faggot a—n---” towards SR N_, U.S. Navy.
	Award:  Forfeiture of $547 per month for 2 months, correctional custody for 30 days, reduction to E-1.  No indication of appeal in the record.

011120:	Applicant found fit for correctional custody (CCU).

011120:	Retention Warning:  Advised of deficiency (Failing to go to appointed place of duty.  Failure to obey a lawful order.  Provoking speeches and gestures.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

011121:	Applicant to CCU.

011220:	Applicant from CCU (30 days).

020606:	NJP for violation of UCMJ, Article 134 – Reckless Endangerment.
	Specification 1: In that Seaman Apprentice J_ E. V_(Applicant), U.S. Navy, USS Bulkeley, Pascagoula, MS, did on or about 13 May 2002, willfully and recklessly engage in conduct, to wit: SA V_(Applicant) sprayed a silicone lubricant onto the ladder rungs and handrails of the ladder in the forward boatswain locker, and that the accused’s conduct was likely to cause death or serious bodily harm to FCC C_, BM2 W_ and SN T_.
	Award:  Restriction and extra duty for 45 days.  No indication of appeal in the record. Recommended for administrative separation.

020612:	Applicant found medically qualified for separation.

020614:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable by reason of misconduct – pattern of misconduct and misconduct – commission of a serious offense.

020614:	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.

020614:	Commanding Officer, USS BULKELEY (DDG 84), recommended discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct and misconduct – commission of a serious offense.  Commanding Officer’s comments:  “Despite the many opportunities SR V_(Applicant) has been afforded, he continues to ignore the rules and regulations of this command and the U.S. Navy as evidenced during his most recent NJP proceedings.  SR V_(Applicant) admitted to violating UCMJ article 134 (Reckless Endangerment) in that he endangered several crewmembers’ lives by spraying silicone lubricant onto ladder rungs and handrails with intent to cause crewmember to fall.  SR V_(Applicant)’s mental capabilities and lack of maturity have continually distracted his performance and have repeatedly disrupted a safe and disciplined working environment.  He attended Executive Officer Inquiry (XOI) on four different occasions, was assigned to anger management training and alcohol awareness training.  He also received numerous divisional counseling and was evaluated by a clinical psychologist on two occasions.  Additionally in order to retain this Sailor, he was awarded Correctional Custody Unit (CCU).  Although he completed CCU, there was little to no improvement in his performance.  In view of the aforementioned failed attempts to make SR V_(Applicant) a productive sailor, I recommended that he be separated from the Naval service with a discharge characterized as Under Other Than Honorable.”

020701:	Commander, Carrier Group EIGHT, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

*Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020702 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 Applicant claims his discharge was unfair and inequitable and that the Command took him to Captain’s Mast three times in which one case was dropped because of insubstantial evidence.  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, 2 nonjudicial punishment proceedings for violations of Articles 86 (unauthorized absence), 92 (Failure to obey order or regulation), 117 (Provoking speeches or gestures) and 134 (Reckless endangerment) of the UCMJ.  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 is claiming he was young and immature at the time.  He States “I have matured since than I’m 24 yrs. Older, Responsible, dependable and a father of two.”  The statement contained in the application that the Applicant’s admission was due to his youth and immaturity was found to be insufficient justification to warrant a change in the reason for discharge.  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 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), Change 18, effective
12 Dec 1997 until 21 Aug 2002, 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 92 (Failure to obey order or regulation) and 134 (Reckless endangerment).

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