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Docket No. ND02-00879

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

 ex-AR, USNR
Docket No. ND02-00879

Applicant’s Request

The application for discharge review, received 020607, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The Applicant requested a personal appearance hearing discharge review before a travel panel closest to Buffalo, NY.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter to the Applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel, all hearings are held in the Washington, D.C. Area.  The Naval Discharge Review Board (NDRB) also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030319.  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 of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  My discharge was inequitable because it was based on certain incidents that pertained to my depression I called out for help and the only thing my division did was send me to a alcohol treatment program I did have a problem with alcohol.

2.  A personality disorder's are the most common ground for discharge under other designated physical and mental conditions (ODPMC).  I had difficulty coping with military life.  I was severely depressed had difficulty sleeping, had inability to cope with work or people and I had occasional thoughts of suicide that was diagnosed by navy psychiatrist.

3.  Because a high protein count was detected when I took my physical to get in the navy now I go to dialysis 3 X a week because I got acute renal failure.

* All information presented upon hearing. 

Documentation

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

National Health Laboratory Report  (2 pages)
Report of Medical History (2 pages)
Medical Record Consultation Sheet
Letter from Applicant (handwritten)
Letter from Applicant dated September 27, 2002
Letter from Department of Veterans Affairs dated September 18, 2002    

PART II - SUMMARY OF SERVICE

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

	Inactive: None
	Active:   None

Period of Service Under Review:

Date of Enlistment:  941216		Date of Discharge:  960918

Length of Service (years, months, days):

	Active:    01  08  08
	Inactive:  00  00  24

Age at Entry:  19			Years Contracted:  8

Education Level:  09			AFQT:  61

Highest Rate:  AA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0 (1)		Behavior:  1.0 (1)		OTA:  2.67

Military Decorations:  None

Unit/Campaign/Service Awards:  MUC

Days of Unauthorized Absence:  23

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

950110:	Commenced 3 years of active duty under the Airman Apprenticeship program.

950810:	NJP for violation of UCMJ, Article 86: (2 Specifications), UA from appointed place of duty on or about 950615 until 950616; UA from unit on or about 950702 until 950725 (23 days/S), violation of UCMJ, Article 128: Assault on or about 950623 by hitting AR R_ in the face.
	Award:  Forfeiture of $427.00 pay per month for 1 month, restriction and extra duty for 15 days.  No indication of appeal in the record.

960131:	Applicant completed Level III rehabilitation treatment.

960212:	NJP for violation of UCMJ, Article 91: Willfully disobey a lawful order from a Senior Chief Petty Officer on 951130, treat with disrespect in language a Senior Chief Petty Officer on 951130.
	Award:  Forfeiture of $435.00 pay per month for 1 months, restriction and extra duty for 17 days, reduction to E-1 (suspended for 3 months).  No indication of appeal in the record.

960223:	Retention Warning from [USS CONSTELLATION (CV-64)]:  Advised of deficiency (Disobeying a lawful order from and disrespectful language toward a Chief Petty Officer), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

960320:	Applicant evaluated by the Mental Health Unit, North Island, San Diego, California diagnosed as having an adjustment disorder, with mixed disturbance of emotions and conduct, a severe antisocial personality disorder and was found to be at continuing risk of harm to himself and others.  Considered responsible for his actions.

960322:	Applicant considered a Level III rehabilitation failure.  AA H_ completed the residential program for alcohol rehabilitation on 960131.  Since then he has failed to show up for any of his aftercare support groups.  

960530:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86, (2 Specifications);
	Specification 1: Failure to go to appointed place of duty at 1045, 960205; Specification 2: Failure to go to appointed place of duty at 0915, 960325.  Charge II: violation of the UCMJ, Article 117: Wrongfully use provoking words on or about 960318.  Charge III: violation of the UCMJ, Article 128: Unlawfully scratch AR T_ on the hand with a die-grinder; unlawfully strike AR T_ on the face with a closed fist.
	Finding:  to Charge I and the specifications 1 and 2 thereunder, guilty.  To Charge II and III, and the specification thereunder, guilty.
	Sentence:  Forfeiture of $653.00 pay for one month, restriction for 60 days, reduced to E-1.
	CA action 960610:  Approved findings and only so much of the sentence as provides for restriction for 60 days, reduction in rate to E-1, and forfeiture of $582.00 pay per month for one month is approved and will be executed.

960618:	USS CONSTELLATION (CV-64) notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by non-judicial punishment on 950810 for violation of Article 128 of the UCMJ, assault consummated by a battery, non-judicial punishment on 960212 for violation of Article 91 of the UCMJ, disobey a lawful order and disrespectful language toward a Senior Chief Petty Officer; and a Summary Court Martial on 960530 for violation of the UCMJ, Article 128, assault consummated by a battery.  Misconduct due to a pattern of misconduct as evidenced by non-judicial punishments of 950910 and 960212, and Summary Court-Martial of 960530.  Alcohol Abuse Rehabilitation Failure as evidenced by successful completion of Level III treatment on 960131 and subsequent failure to complete directed Level III after-care program; and Personality Disorder as evidenced by a psychiatric evaluation of 960320. 

960619:	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.

960810:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

960813:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense, misconduct due to a pattern of misconduct, alcohol abuse rehabilitation failure, and convenience of the government due to personality disorder

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 960918 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).

Issues 1 and 2.  While he may feel that depression, a personality disorder, and problems with alcohol were factors that contributed to his actions, the record clearly reflects his disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  Despite his diagnosis on 960320 with a personality disorder, 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 3.  The Board found no relation between the Applicant’s protein count and renal failure and his misconduct while in the Navy.  The Veterans Administration determines eligibility for post-service benefits, not the NDRB.  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.

The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident 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.  Relief not warranted.

The Applicant 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.  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 9, effective 
22 Jul 94 until 02 Oct 96), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – A 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 “afls14.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:  A6710/A9323/A9321/A9217/A9221