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Docket No. ND04-00438

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

ex-SA, USN
Docket No. ND04-00438

Applicant’s Request

The application for discharge review was received on 20040121.  The Applicant requests the 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 did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041015.  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 1910-142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “My discharge is improper because of misconduct was caused by a mental disorder (schizo-affective disorder).  During the enlistment I had paranoid delusions which caused me to act out of character.  Because of my misconduct I was discharged in a manner of hast without being properly diagnosed and treated by Navy Medical personal, within a year of being discharged I had been institutionalized, tried to commit suicide, heavily medicated, and diagnosed as having schizo-affective disorder.  Since that time I have been completely disabled under California law and unable to work.  A characterization of my mental illness is psychotic behavior and delusions.  To the patient (me) These delusions seem to be reality.  That’s why upon medical examination I denied any mental problems.  I believe that my actions and behavior where so out of character that the Navy personell should have recognized that I have a mental illness.  I respectfully request that my character of discharge be changed so I can qualify for mental health care, and VA programs that can help me with my disability and aid me toward a path to recovery.”

Documentation

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

Applicant’s DD Form 214 (3)
Applicant’s DD Form 214 (previous enlistment) (2)
Twenty-seven pages from Applicant’s service record
Chaminade University transcript, dated June 17, 1998
Fourteen pages from Applicant’s civilian medical record

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR(DEP)		940304 - 940912	COG
	Active:    USN 			940913 - 980912	HON

Period of Service Under Review:

Date of Enlistment:  010517		Date of Discharge:  010905

Length of Service (years, months, days):

	Active:    00  03  19	Does not exclude lost time
	Inactive:  None

Age at Entry:  26			Years Contracted:  2

Education Level:  12			AFQT:  67

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF*		Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  NAM, GCM, NDSM

Days of Unauthorized Absence:  52
*No Marks Found

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-142 (formerly 3630605).  

Chronological Listing of Significant Service Events:

010518:	Applicant to unauthorized absence 0730, 010518.

010710:	Applicant from unauthorized absence 1950, 010710 (52 days/surrendered).

010727:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 010518 to 010710, violation of UCMJ, Article 91 (2 specs): (1) Willfully disobey a lawful order from SH1 on 010723, to wit: to get his hair back in accordance with his military ID Card, (2) Disrespectful in language to SH1 on 010723, to wit: by saying to him “I am not fucking going to get a haircut nor dye my hair” and “I want to see you cut my hair.”
	Award: Forfeiture of $584 per month for 2 months, restriction and extra duty for 30 days, reduction to E-2.  No indication of appeal in the record.

010814:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by absent without leave (30 days or more).

010814:	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 

010821:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to absent without leave (30 days or more).

010824:	Commander, Navy Region Southwest directed the Applicant's discharge under other than honorable conditions by reason of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010905 under other than honorable conditions for misconduct due to the commission of a serious offense (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:  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 mental problems were contributing factors, they do 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 nonjudicial punishment (NJP) for violating the UCMJ, Article 86 thus substantiating the misconduct.  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 a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.   At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.  

The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board (NDRB).  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veteran’s benefits and this issue does not serve to provide foundation upon which the Board can grant relief.  

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 other evidence related to his discharge at that time.  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 31, effective 
25 Jan 01 until 21 Aug 02, Article 1910-142 [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

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.