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

ex-AR, USN
Docket No. ND04-00491

Applicant’s Request

The application for discharge review was received on 20040204.  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 did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040922.  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: GENERAL (UNDER HONORABLE CONDITIONS)/CONDITION, NOT A DISABILITY, authority: NAVMILPERSMAN, Article 1910-120 (formerly 3620200).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“ISSUES:

1.  The main issue is that my discharge was classified as General Under Honorable Conditions, when there were relevant mitigating circumstances leading up to my discharge that unquestionably should have allowed an Honorable Discharge. The general situation that led to my discharge was behavioral infractions on my part that resulted in my being characterized as an administrative burden to the Navy. While these minor infractions were clearly documented, the circumstances surrounding the infractions were not. I further submit that from the time my problems first arose, my Command demonstrated a pattern of poor leadership, inadequate sensitivity to serious and legitimate psychological stress issues, and egregiously bad medical care bordering on professional negligence. These conditions, and their relationship to the behavioral problems that led to my discharge will be explained below as sub-issues.

Sub-issue la: My physical condition. I am in good physical condition, however I was born with bilateral club feet, which were surgically corrected at an early age. While I am able to do everything that others my age can do, my feet have presented many challenges. When I attempted to enlist in the Navy, I was initially not recommended, based on my feet (End. la-i). However I knew I was capable of serving, and I was determined to join the Navy. So I requested a waiver and was allowed to perform a supervised series of challenging physical demonstrations, was re-examined, and on the basis of my performance was granted a waiver (End. ia-2). I feel that my determination to overcome my initial rejection, and persistence to gain approval to enlist demonstrate my commitment to serving my country.

Sub-issue lb: Unanticipated psychological stress. Prior to my enlistment, I lived in Indonesia with my parents, where my father was stationed with the US Navy. While living in Indonesia we visited the island of Bali several times, and 1 developed close friendships with many of the local people. After I joined the Navy, while I was in training at NATTC in Pensacola, FL, a terrorist bomb was exploded in a public place in Bali, and I soon learned that many of my close friends had been killed or injured in the blast. Also at about that time, in the Washington, D.C. area a sniper shot and killed over a dozen innocent people. One of the victims was the father of my best friend and next door neighbor, A_ W_, from the town (Olney, MD) where I lived when I enlisted. These two traumatic events, in close succession, caused me to seek counseling from the base Chaplain and a Navy psychiatrist, as I was severely depressed (Encl. lb-1). Despite my depression, the psychiatrist documented that I was “motivated for continued military service” and I was “returned to duty, psychiatrically fit for same” (End. lb-i, pg 2). However my emotional state made it difficult for me to concentrate on my classes, on the rigorous physical training, and on “going along with the program” in general. My apparent lack of enthusiasm was misinterpreted as laziness and uncooperativeness, and soon became justification for continuous harassment by my superiors and my peers.

Sub-issue 1 c: Harassment by superiors and peers. As described in Sub-issue 1 b above, I was having difficulty keeping up with my peers, both in the daily physical training and in my classwork. My poor performance elicited unrelenting mental and physical harassment from my classmates, and from my Petty Officers, despite their knowledge of the recent traumas I was trying to work through. I was subjected to daily, pre-dawn, extra physical training, far beyond that required of my peers. Despite the challenges presented by my feet, I did my best to perform, but my performance could not meet expectations. This situation began a downward spiral of substandard performance by me, harassment by my superiors and peers, and further substandard performance that led to a series of behavioral infractions and my ultimate classification as an administrative burden to the Navy.

Sub-issue 1 d: Medical treatment. After repeated requests to my superiors, and visits with the Chaplain, I was referred for psychological evaluation. My primary healthcare provider was a Navy psychologist (not a psychiatrist). I was evaluated by the psychologist with a diagnosis of several disorders (Encl. 1 d- 1), which served as the basis for putting me on a variety of powerful psychotropic drugs (Encl. 1 d-2, 1 d-3) several of which can have adverse drug interactions. The day I was to be discharged from the hospital and returned to duty at NATTC, I suffered a seizure (Encl. 1 d-4), possibly induced by one of the drugs (Encl 1d-5), that resulted in a fall and a head injury requiring suturing. At this point, since there was disagreement among the medical staff as to whether my seizure was drug-induced, or whether I had epilepsy, I was not returned to duty (Encl. 1 d-4), and was referred for a neurological workup (EEG and MRI). The consulting neurologist determined as a result of the tests that I should be placed on limited duty for six months (Encl. 1 d-6). Despite an abnormal EEG, and the neurologist~ s recommendation, I was returned to NATTC, to full duties, in the exact same stressful situation, where my harassment immediately resumed. It should be noted that at this time, our nation was building up to the war in Iraq, and the medical leadership in Pensacola was understandably more focused on preparations for war, than on my case. However this led to me being processed for expedited discharge, without proper medical/psychiatric evaluation of my situation, or any assessment of why things were continuing to get worse, or even to confirm a diagnosis of my condition (which remains undiagnosed today). I was a problem, and my superiors just wanted me out of the way. Just days before my separation from the Navy, there remained much confusion as to whether or not I was medically cleared for discharge (Encl. 1 d-7). While I view my experience as an extremely unfair hearing (actually, no hearing), and egregiously mismanaged medical care, I decided not to fight my discharge. However given that my problems were in large part out of my control, and in any event, minor on the scale of disciplinary infractions, I consider it inappropriate and grossly unfair that I was not given a full honorable discharge from the Navy.

2: The second issue is that while my various behavioral infractions were documented in my record in great detail, any mitigating circumstances were not. Thus, this grossly biased documentation will never reveal that:
 I was subjected to “motivational training” involving daily pre-dawn physical training on a scale far in excess of what my peers routinely did. Despite the limitations of my feet, I tried my hardest to perform, but could not meet expectations, and this unquestionably contributed to my behavioral problems.
• I was severely and repeatedly abused physically inside the barracks by my classmates, who saw my poor performance as causing them inconvenience and loss of privileges as a class. It was never considered (and remains a question today) whether any of the physical trauma I experienced, such as having my head smashed against metal lockers, might have contributed to my seizure in the hospital.
• Repeated written requests by me to be transferred to another class, where I felt I might find an improved environment in which to excel in my Navy studies, were denied by my first level supervisor, and were never forwarded up the chain of command for higher level consideration, as required by Navy regulations. Not a single special request chit that I submitted was ever returned to me with signatures denying my request. I was simply informed verbally by my Petty Officers that my requests for transfer were denied, with no explanation as to why.

In summary, at the time of my enlistment I was fully committed to a Naval career, and I overcame tremendous physical challenges against all odds to gain approval for enlistment, graduate from Boot Camp and initiate my technical training. However while at school, I fell victim to gross medical mismanagement and unwarranted mental and physical abuse, compounded by a complete lack of leadership by my superiors, resulting in the loss to our country of what should have been an outstanding sailor. Then, in a totally unjustified final insult after taking away my Navy career opportunity, I was denied an Honorable Discharge (Encl. 2). Given the reality of my situation, and the documentation I have provided, I respectfully request the Board’s reconsideration of my situation, and that I be granted retroactively a full Honorable Discharge from the Navy. Thank you.”

Documentation

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

Copy of Physical Qualification for Enlistment Letters (2)
Copies of Medical Documentation (9 pages)
 .

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	020416 - 020620	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  020621		Date of Discharge:  030207

Length of Service (years, months, days):

	Active:    00  07  17
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 (12 month extension) 

Education Level:  12			AFQT:  57

Highest Rate:  AR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NOB (1)		Behavior:  3.00 (1)		OTA:  3.00 (1)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  None 

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

GENERAL (UNDER HONORABLE CONDITIONS)/CONDITION, NOT A DISABILITY, authority:  NAVMILPERSMAN, Article 1910-120 (formerly 3620200).

Chronological Listing of Significant Service Events:

021023:	Retention Warning:  Advised of deficiency (Failure to comply with AM school policy, SNM UA from AM A school (fourth offense), failure to attend Mandatory PT as assigned, lack of military bearing), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

021018:	Psychiatric Evaluation:
	
	AXIS I: Dysthymic Disorde, EPTE
	AXIS II: Personality Disorder Not Otherwise Specified with Negativistic (Passive Aggressive), Dependent, Paranoid, and Self Defeating Features. 

The member manifest’s a long-standing disorder of character and behavior which is of such severity as to interfere with adequately serving in the Navy.  The clinical opinion is that the personality disorder is chronic, severe, and not expected to improve with command counseling or psychiatric attention in a military setting.  AR C_ is not motivated for further service and will most likely become an increasing administrative burden to his command with deteriorating performance, conduct, reliability, and judgement.  Advised of consideration of administrative separation for unsuitability.

021023:	Retention Warning:  Advised of deficiency (You have been diagnosed by medical authorities as having a dysthymic disorder, which existed prior to entry into the naval service, and a personality disorder, not otherwise specified, with negativistic (passive aggressive), dependent, paranoid, and self defeating features.  Your potential for future active naval service to the United States Navy is considered inadequate), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

021114:	Psychological Evaluation: 
	AXIS I: Dysthymic Disorde, EPTE
	AXIS II: Personality Disorder Not Otherwise Specified with Negativistic (Passive Aggressive), Dependent, Paranoid, and Self Defeating Features. 

030103:	Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of convenience of the government due to physical or mental conditions not necessarily amounting to disability but affecting potential for continued active duty in the naval service as evidenced by diagnosis of dysthymic disorder which existed prior to entry into the naval service.  He was also diagnosed as having a personality disorder, not other wise specified, with negativistic (passive aggressive), dependent, paranoid, and self-defeating features.

030103:  	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.

030108:	Commanding Officer, Naval Air Technical Training Center authorized the Applicant's discharge general (under honorable conditions) by reason of convenience of the government due to a physical or mental condition, not a disability.

030207:	Commanding Officer directed discharge with the type warranted by service record by reason of convenience of the government on the basis of a physical or mental condition-dysthymic disorder which existed prior to entry into the naval service (EPTE) and a personality disorder, not otherwise specified, with negativistic (passive aggressive), dependent, paranoid, and self-defeating features.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030207 with a general (under honorable conditions) for convenience of the government due to a physical or mental condition, not a disability. (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 1-2:  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.  NDRB regulations limit its review to the propriety and equity of the discharge.  The Applicant was processed for administrative separation due to a physical or mental condition, not a disability.  While he may feel that his personal 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. The Board found no indication in the record that the Applicant was inequitably or improperly denied treatment for his medical problems.  The Applicant’s allegations, that he was denied assistance and counseling for his personal problems, do not refute the presumption of regularity in this case.   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 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, 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 service while on active duty.  

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), re-issued October 2002, effective 22 Aug 2002 until Present, Article 1910-120 (formerly 3620200), SEPARATION BY REASON OF CONVENIENCE OF THE GOVERNMENT - PHYSICAL OR MENTAL CONDITIONS.

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	

_____________________