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Docket No. ND03-00669

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

 ex-ENFR, USN
Docket No. ND03-00669

Applicant’s Request

The application for discharge review was received on 20030304.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant listed a civilian counsel as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040205.  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/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Issues submitted by Applicant’s counsel (civilian counsel):

“1.  ENFR S_ (Applicant) was not provided a reasonable opportunity to consult with available counsel. Despite a mental health diagnosis of Dependent Personality Disorder, he was improperly urged to waive his right to counsel in contravention on of applicable Naval Regulations.

2.  J_ B_ S_ (Applicant) was discharged from the United States Navy on March 31, 2000 on the basis of misconduct pursuant to MILPERMAN 19 10-146. He received an Other Than Honorable Discharge. In March of 2000 ENFR S_ (Applicant) was assigned to the USS Curtis Wilbur. At that time the USS Curtis Wilbur was docked at U.S. Naval Base Yokosuka Japan. Prior to his discharge ENFR S_ (Applicant) was seen in the U.S. Naval hospital in Yokosuka Japan on February 28 after reporting suicidal thoughts. Medical Records indicate that ENFR S_ (Applicant) had a history of depression and suicide attempts.

3.  Commander J_ S_ at the naval hospital diagnosed ENFR S_ (Applicant) with Dependent Personality Disorder, noting that at that time, ENFR S_ (Applicant) was an ongoing danger to himself.  Medical records also reveal a diagnosis of polysubtance abuse with reports of depression and drug use dating from 7 December 1999.

4.  A formal Mental Health Evaluation was forwarded to the Commanding Officer of the USS. Wilbur on 9 March 2000. According to J_ W_ S_, “the evaluation revealed an enduring and pervasive pattern of dependency with symptoms of submissive behavior.” The evaluation also noted “cognitive distortions”. According to the Navy doctors; “this service member’s personality disorder is considered so severe that it is significantly impairing his effective functioning in the military environment.” As a result of this diagnosis S_ (Applicant) was not permitted to return to the ship.

5.  ENFR S_ (Applicant) did have a record of misconduct as evidenced by his record of nonjudicial punishments dating from 16 June 1999. This record was consistent with his history of mental health problems dating from 7 December 1999, and the diagnosis of Naval doctors that his disorder was so severe it impaired “his effective functioning in the military environment.”

6.  On 20 March 2000 S_ (Applicant) once again received nonjudicial punishment. S_ (Applicant) also was informed of the Commander’s intent to separate him from the Navy. As part of the separation process ENFR S_ (Applicant) was provided an Administrative Separation Processing Notice. This document indicated that ENFR S_ (Applicant) waived his right to consult with qualified counsel, his right to request an administrative board, and his right to be represented by qualified counsel at an administrative board. While executing this document S_ (Applicant) recalls being told by his “LT” that he “did not need a lawyer.” After signing his discharge paperwork, ENFR S_ (Applicant) recalls being thanked for his “cooperation.” During this time frame S_ (Applicant) was depressed, anxious, and very confused. In his words he was “not in my right mind.” At the time ENFR S_ (Applicant) signed the Administrative Separation Processing Notice he neither understood nor appreciated the meaning and effect of his action. Not only did ENFR S_ (Applicant) not understand his legal rights, but also no one in his chain of command took the time to ensure that he understood the legal ramifications of his actions. The documentary evidence speaks for itself, despite his clear cognitive impairment as diagnosed by Naval medical professionals no one ensured that ENFR S_ (Applicant) received appropriate legal counseling before waiving important legal rights.

7.  According to the Diagnostic and Statistical Manual of Mental Disorders (D S M -I V), individuals with Dependent Personality Disorder have great difficulty “making everyday decisions...without an excessive amount of advice and reassurance from others.” These individuals tend to be passive and “allow other people... to take the initiative and assume responsibility for most major areas of their lives.” The criteria for this disorder includes inter alia the following:
(1) difficulty making everyday decisions without an excessive amount of advice and reinsurance from others
(2) needs others to assume responsibility for most areas of his or her life
(3) has difficulty expressing disagreement with others because of fear of or loss of support or approval,
(4) has difficulty initiating projects and doing things on his or her own,
(5) goes excessive lengths to obtain nurturance and support from others, to the point of volunteering to things that are unpleasant.
In light of this diagnosis by Naval physicians, it was extremely inappropriate to allow ENFR S_ (Applicant) to waive his right even to consult with counsel. Under these circumstances, the opportunity to manipulate this impaired and submissive sailor was too great to ignore the simple precaution of allowing him to consult a qualified counsel.

8.  According to MILPERSMAN 1910 -140, Administrative Board Procedures are to be used when the commanding officer believes the circumstances warrant an Other Than Honorable Discharge. Pursuant to MILPERSMAN 1910 -406, a service member has the right to consult with qualified counsel before electing any rights. An exception exists where the service member is deployed away from an overseas homeport. Even then, non-lawyer counsel should be appointed.

9.  In this case, ENFR S_ (Applicant) was deployed to Yokosuka Japan. It would therefore appear that qualified legal counsel was available to consult with ENFR S_ (Applicant). A review of Yokosuka’ s Directory reveals numbers to the legal office and specifically defense counsel. In light of S_ (Applicant)’s diagnosis, it was clearly inadvisable for S_ (Applicant) to make any elections of rights in the absence of legal consultation. In light of S_'s (Applicant’s) diagnosis of Dependent Personality Disorder, he was certainly susceptible to manipulation by his chain of command. S_'s (Applicant's) mental disorder made it difficult for him to make personal decisions. Naval doctors noted that he demonstrated a pervasive pattern of dependency and submissive behavior. It is a characteristic of this disorder that individuals have difficulty making everyday decisions without an excessive amount of advice and reassurance from others. The combination of these circumstances and this diagnosis made ENFR S_ (Applicant) highly susceptible to the suggestion that “he did not need a lawyer”. The fact that the commander was aware of S_'s (Applicant's) diagnosis makes their conduct of this matter even more inappropriate. This is not a situation where the chain of command was unaware of a service member’s condition. On the contrary it appears that the command, fully aware of S_'s (Applicant’s) condition, took advantage of him to expedite this without the annoying scrutiny of independent counsel.

10. While it is true that S_ (Applicant)’s record reflects negatively on his service, his mental disorder clearly signifies extenuating and mitigating circumstances. Moreover, other records reveal that prior to the onset of his emotional problems, ENFR S_ (Applicant) displayed initiative and strong working knowledge. These facts might very well have been presented to an administrative board to justify a higher discharge. In any event, S_ (Applicant) should not have received an Other Than Honorable Discharge without strict compliance with Naval regulations concerning his right to counsel.

11. On the basis of the forgoing, J_ S_ (Applicant) requests that his discharge be upgraded to Honorable and the basis of the discharge be changed to Secretarial Authority and for such other relief that the board deems just and proper.

Respectfully submitted this 25^th day of February 2003.

T_ C_ C_
Attorney for J_ B_ S_ (Applicant)
(address deleted)”

Documentation

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

Mental Health Evaluation by J_ W_ S_, dated March 9, 2000
Medical Records (5 pages)
Recommendation for Administrative Separation by E_ J_ Q_, dated March 21, 2000
Administrative Separation Processing Notice to ENFR S_ (Applicant), dated March 20, 2000
Evaluation Report and Counseling Record by R_ S_ H_, dated August 18, 1999
Applicant’s DD Form 214
Authority for discharge by W_ E_ F_, dated March 21, 2000

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	971112 - 971119	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  971120		Date of Discharge:  000331

Length of Service (years, months, days):

	Active:    02  04  12
	Inactive:  None

Age at Entry:  22			Years Contracted:  4

Education Level:  10 GED		AFQT:  59

Highest Rate:  ENFN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF*		Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  NER, AFEM, SSDR

Days of Unauthorized Absence:  21

* No Marks Found
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events:

990616:	NJP for violation of UCMJ, Article 86: Absence without leave on 990613.
	Award: Restriction and extra duty for 15 days.  No indication of appeal in the record.

990616:	Retention Warning:  Advised of deficiency (Absence without leave.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

990817:	NJP for violation of UCMJ, Article 86: Absence without leave, violation of UCMJ, Article 92: Failure to obey order or regulation.
	Award: Forfeiture of $537 per month for 2 months, restriction and extra duty for 45 days, reduction to ENFA.  No indication of appeal in the record.

990817:	Retention Warning:  Advised of deficiency (Absence without leave and failure to obey order or regulation.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

991117:	Applicant to unauthorized absence 0700, 991117.

991206:	Applicant from unauthorized absence 1020, 991206 (19 days/surrendered).

991213:	NJP for violation of UCMJ, Article 86: Absence without leave, violation of UCMJ, Article 87: Missing movement.
	Award: Forfeiture of $479 per month for 2 months, confinement for 3 days, reduction to ENFR.  No indication of appeal in the record.

991215:	Retention Warning:  Advised of deficiency (Absence without leave and missing movement (2 specifications)), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

000222:	Applicant to unauthorized absence 0700, 000222.

000224:	Applicant from unauthorized absence 2230, 000224 (2 days/surrendered).

000229:	NJP for violation of UCMJ, Article 86: Absence without leave.
	Award: Forfeiture of $502 per month for 2 months.  No indication of appeal in the record.

000309:	Mental Health Evaluation: Diagnoses: Axis I: Occupational problem.  Axis II: Dependent personality disorder.  Axis III: No general medical condition.

000313:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 000308, tested positive for amphetamine/methamphetamine.

000320:	NJP for violation of UCMJ, Article 112A: Wrongful use of controlled substances.
	Award: Forfeiture of $502 per month for 2 months.  No indication of appeal in the record.

000320:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, misconduct due to commission of a serious offense and misconduct due to drug abuse.

000320:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

000321:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, commission of a serious offense and drug abuse.

000321:	Commander, Carrier Group 5 directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000331 under other than honorable conditions for misconduct due to drug abuse (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 1-11:  The Applicant’s issues are without merit.  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.  While he may feel that his personality disorder was a contributing factor, it does not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service.  His service record is marred by award of non-judicial punishment (NJP) on five separate occasions for numerous offenses some of which include unauthorized absence and illegal drug use.  
The evidence of record does not demonstrate that the Applicant was not capable of understanding the consequences of his decisions or that he should not be held accountable for his actions.  The Board found no indication in the record that the Applicant was inequitably or improperly discharged.  Additionally, the summary of service clearly documents that drug abuse was the reason the Applicant was discharged.  No other Narrative Reason for Separation could more clearly describe why he was discharged.  To change the Narrative Reason for Separation would be inappropriate.  Relief denied.
 
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, a positive employment record, an alcohol-free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.   

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 additional documentation to support any claims of post-service accomplishments at that time.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 27, effective 27 March 2000 - 11 Feb 2001, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - Drug Abuse.

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.
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