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Docket No. ND01-01089

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

 ex-PNSA, USN
Docket No. ND01-01089

Applicant’s Request

The application for discharge review, received 010814, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to convenience of govt.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020328.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character and narrative reason of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  Whether the Non-judicial Punishment of 29 September 1998 was just and equitable in view of the fact that I was acting sequel to a naval regulation and in self-defense.

2.  Whether equity does not entitle me to a benefit of doubt where there has been a first-instance, clear and honest "mistaken perception of navy policy" and regulation.

3.  Whether the Non-judicial punishment of 16 October 1998, and the subsequent characterization of my discharge were proper, just and equitable in view of the fact that I was prevented by a medical incapacity (motion sickness) from proper performance.

4.  Whether it was proper and equitable for the Commanding Officer to refuse my request for consideration and/or medical/contractual discharge prior to my involuntary transfer to undertake food service duties.

5.  Whether, from the circumstances of the case, I willfully disobeyed any officer and/or petty officer

6.  Whether my involuntary transfer to the Food Service Division did not operate as a breach of my enlistment contract, and whether I was not freed from contractual obligation thereby.

7.  Whether the failure of the command to discharge me from naval service in view of repeated diagnoses of a disqualifying medical condition (motion/sea sickness) was proper.

8.  Whether it was equitable for the command to subsequently discharge me under other than honorable conditions for actions occurring as a result of the same medical condition that had been condoned.

9.  Whether the characterization of my discharge was proper and equitable in view of a diagnosis of personality disorder and other ancillary recommendations.

10.  Whether the commanding officer's report to the discharge authority was accurate, and not misleading and unfairly prejudicial.

11.  Whether my waiver of rights was knowing, intelligent and voluntary in the circumstance.

12.  Whether it was proper for the commanding officer to place me and/or threaten to place me on punishments if I requested an administrative board, and for the duration of the discharge period.

13.  Whether the commanding officer and/or the command was right to reject my withdrawal of the waiver when the withdrawal was made before the discharge authority had acted on the discharge request.

14.  Whether the individual actions of some identified members of the command was not capricious and prejudicial.

15.  Whether I was guilty of a pattern of misconduct, and whether the characterization of my discharge was just and equitable under the circumstances.

Documentation

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

Statement of Facts, Issues, and Main Brief
Chronological Record of Medical Care dated 14 January 1998
Chronological Record of Medical Care dated 10 February 1998
Chronological Record of Medical Care dated 9 June 1998
Chronological Record of Medical Care dated 5 July 1998
Chronological Record of Medical Care dated 26 July 1998
Emergency Care and Treatment, Cuba, dated 28 July 1998
Statement of Defense for Captain's Mast
Appeal of Non-judicial Punishment dated 6 November 1998
Voluntary Statement of MS1 I M_ G_ dated 9 October 1998
Voluntary Statement of MS2 D_ D_ dated 9 October 1998
Recommendation for Administrative Separation dated 29 October 1998
Letter from LCDR W. D. F_ diagnosing adjustment/personality disorder
Complaint of Wrong against CO, USS HAWES dated 3 December 1998
Commanding Officers answer to the complaint 5 February 1999
Reaction to Answer Pursuant to JAGMAN Chap. 111, dated 31 August 1999
Restriction Request from CO USS HAWES to CO TPU dated 26 October
1998
Chronological Record of Medical Care dated 12 November 1998
Letter from LT J_ B_ to CO TPU dated 1 December 1998
Complaint of Wrong against the CO TPU dated 7 December 1998
US Senator John W_'s reply dated 11 December, 1998
US Senator John W_'s reply dated 21 December, 1998
Evaluation Report and Counseling Record dated 27 February 1998
Statement of Enclosures and Attachments to the Application
Statement from applicant, 010917
Letter of appreciation, 991105
Notary Public authorization letter, 990928
Certificate of Notary Public, 991006
Letter of recommendation, 960625
Letter of recommendation, 000810
Character reference, 000816
Certificate of member of State of New York bar, 010227
1998 tax return
1999 tax return
2000 tax return
Vehicle donation letter, 010606
Employment verification letter, 010601

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	970620 - 970810	COG

Period of Service Under Review:

Date of Enlistment:  970811		Date of Discharge:  981214

Length of Service (years, months, days):

	Active:    01  04  04
	Inactive:  None

Age at Entry:  31			Years Contracted:  4

Education Level:  15			AFQT:  Unknown

Highest Rate:  PNSA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF			Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

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

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

Chronological Listing of Significant Service Events:

980929:	NJP for violation of UCMJ, Article 128: Assault consummated by a battery.
	Award:  Forfeiture of $150 per month for 2 months, restriction and extra duty for 45 days, reduction to PNSA.  Forfeiture and reduction suspended for 6 months.  Appealed 981006.  Appeal denied 981010.

981016:	NJP for violation of UCMJ, Article 90 (2 specs): (1) Willfully disobey a lawful command from LCdr on 1100, 9Oct98, to wit: go to work in the scullery. (2) Willfully disobey the lawful command from LT on 1100, 9Oct98, to wit: go to work in the scullery, violation of UCMJ, Article 91 (3 specs): (1) Willfully disobey lawful order from EN2 on 1000, 9Oct98, to wit: go to work in the scullery, (2) Willfully disobey lawful order from MS1 on 1100, 9Oct98, to wit: go to work in scullery, (3) Willfully disobey lawful order from MS2 on 1100, 9Oct98, to wit: put on hearing protection in the scullery, violation of UCMJ, Article 117: Wrongfully use reproachful words on 1000, 9Oct98, to wit: if we weren't in the military I would teach you a lesson.
	Award: Forfeiture of $463 per month for 2 months, restriction and extra duty for 45 days, reduction to PNSR.  Appealed 981106.  Appeal denied 981120.  Charge III dismissed.

981019:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and commission of a serious offense.

981021:	Vacate suspended forfeiture of $150 for 2 months and reduction to PNSA due to continued misconduct.

981021:	Psychiatric admission:  Diagnosis:
		Axis I: Adjustment disorder with mixed features.
		Axis II: Personality disorder NOS
		Axis III: No diagnosis.
		Axis IV: Altercation after Captain's Mast.
		Axis V: Assessment of functioning at the time of discharge - 80.

981026:  	Applicant advised of his 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. 

981029:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and commission of a serious offense.  Commanding officer's comments (verbatim): SNM first appeared before me at an Article 15 hearing in September because he attempted to resolve conflict between himself and another shipmate by striking him with an open hand, rupturing his ear drum.  Prior to this hearing, SNM performed a dramatic, suicide-like action after his case was not dismissed at Executive Officer's inquiry.  This behavior was universally believed to be the act of a fully lucid, sane individual on his own life.
	Seventeen days later, he reappeared before me at an Article 15 hearing because he threatened the Mess Deck Master-at-Arms and disobeyed the direct orders of his entire chain of command, up to and including the Executive Officer.  At the conclusion of Captain's Mast, he refused to salute me in a clear sign of insubordination.  Within on hour of the conclusion of Captain's Mast, SNM performed another dramatic suicidal gesture.
	Clearly, this individual is not willing to conform to basic military standards.  His personality, demeanor, and cultural norms are wholly incompatible with further naval service.  His conduct has been repeatedly immature, selfish, and violent.  I am unwilling to allow this type of behavior within my command.

981113:	Commander, Naval Surface Force, U.S. Atlantic Fleet directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

981201:	Applicant requested an administrative discharge board.

981203:	Applicant's request for an administrative discharge board was denied.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 981214 under other than honorable conditions for misconduct due to a pattern of misconduct (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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).

Issue 1.  The Board reviewed the applicant’s information and the official records concerning his non-judicial punishment received on 980929 to include the denial of appeal and found no inequity or impropriety.  Relief denied.

Issue 2.  The applicant failed to provide sufficient documentation that the offenses with which he was charged while on active duty were either improper or that he was inequitably punished for those offenses.  The Board found no credible information with which to overcome the presumption of regularity in governmental affairs.  Relief denied.

Issue 3.  The Board reviewed the applicant’s information and the official records concerning his non-judicial punishment received on 981016 to include the denial of appeal and found no inequity or impropriety.  A characterization of service of under other than honorable conditions 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 award of nonjudicial punishment (NJP) for offenses triable by court-martial on two occasions.  The Board found that the applicant’s motion sickness did not mitigate his offenses.  The applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful disobedience of the orders and directives which regulate good order and discipline in naval service, and falls short of that required for an honorable characterization of service. Relief denied.

Issue 4.  The Board found no documentation to support the allegation that the applicant was unfairly denied any request for separation or transfer during his enlistment.  Relief denied.

Issue 5.  The Board presumed regularity in the record of the applicant’s offenses and subsequent non-judicial punishments.  The applicant failed to introduce evidence sufficient to override this presumption.  Relief denied.

Issue 6.  The Board found no inequity, impropriety, or breach of contract in the fact that the applicant was trained and assigned to a billet in one rating, but subsequently assigned to work as a messman during his tour aboard ship.  The Board found such action does not provide cause for the applicant to be voluntarily separated from the Navy.  Relief denied.  

Issues 7 and 9.  The Board did not find sufficient documentation to substantiate the applicant’s claim that he was improperly denied involuntary separation for medical, psychological, or other unspecified reasons.  Separation by reason of a personality disorder is not appropriate when separation is warranted for any other reason [A].  Relief denied.

Issue 8.  The Board found that the applicant’s age, education level, and test scores qualified him for enlistment.  While he may feel that his motion sickness was a factor that contributed to his actions, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

Issue 10.  The Board found that the applicant’s commanding officer’s letter, dated 981029, in no way adversely affected the propriety and equity of the applicant’s discharge.  The applicant failed to provide credible evidence that the commanding officer’s comments were prejudicial, inaccurate, or misleading.  Relief denied.

Issues 11 and 13.  The Board found that the applicant’s age, education level, and test scores qualified him for enlistment. On 981019, the applicant was notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and commission of a serious offense.
On 981026, the applicant was advised of his rights concerning involuntary separation 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.  On 981203, a staff judge advocate reviewed the applicant’s request for an administrative separation board and denied the request.  This action was proper and equitable.  The Board discerned no impropriety or inequity concerning the applicant’s administrative discharge proceedings. Relief denied.  

Issue 12.  The Board found no inequity, impropriety or injustice in the applicant’s record of restriction resulting from punishments received at non-judicial punishment.  The Board did not find credible documentation to support the applicant’s allegation that he was punished or threatened for requesting an administrative discharge board or while awaiting discharge.  Relief denied.

Issue 14.  The applicant failed to provide credible documentation that he was the victim of capricious and prejudicial actions by members of his command, medical officers, or legal officers such that these alleged actions constitute an injustice, impropriety, or inequity that warrants an upgrade to his characterization of service.  Relief denied.   

Issue 15.  The record of the applicant’s offenses constitute a pattern of misconduct [A]. A characterization of service of under other than honorable conditions 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 award of nonjudicial punishment (NJP) for offenses triable by court-martial on two occasions.  The applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful disobedience of the orders and directives which regulate good order and discipline in naval service, and falls short of that required for an honorable characterization of service. No other narrative reason more clearly describes the circumstances surrounding the applicant’s processing for administrative separation.  An upgrade would be inappropriate.

The discharge was proper and equitable.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  Additionally, 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.  However, 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.  Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct.  The applicant did not provide sufficient documentation to warrant an upgrade to his discharge.  He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 1997 until Present, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 “afls10.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX:  A6750/A9223/A9321/A9453/A9323/A0209/A0103/A0209/A9221