Author: CAP
Last saved by: shirley.robertson
Company: NCPB

Docket No. ND04-01156

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

ex-AN, USN
Docket No. ND04-01156

Applicant’s Request

The application for discharge review was received on 20040709.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record review.  The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20041222.  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)/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.  “While onboard the USS ABRAHAM LINCOLN I suffered from a personality disorder and occupational problem which later on led to anxiety.  I was diagnosed and given a pg.13 on my disorder in which I would have received an administrative separation up a psych requested.  I’m willing to proof that my chain of command intentionally fabricated my condition so that I would look like a bad sailer.  I was set up to receive a misconduct when I didn’t deserve one.  No one helped me or my condition b ut blew me off and I’m respectfully asking that you carefully review my evidence and listen to my case.”

Documentation

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

VA, Waco, TX, Decision Review dtd Feb 2, 2004 (2 pages)
Applicant’s DD Form 214 (Member – 1)
Psychology, Med Dept, Recommendation for Applicant’s Discharge dtd Dec 19, 2001 (4 pages)
VA, Waco, TX, Statement of Case, dtd Feb 2, 2004 (1 page)
Administrative Counseling/Warning dtd Dec 20, 2001
Applicant’s undtd letter and handwritten log (11 pages)
Applicant’s USS ABRAHAM LINCOLN Check In/Out Sheet (Aug 21, 2001) (2 pages)
Incident Summary dtd Aug 29, 1001 (2 pages)
Counseling pages, some with Extra Military Instructions (13 pages)
Verbal Counseling (Oct 22, 2001)/and Extra Military Instruction
Preliminary Inquiry ordered concerning Possible NJP for Art 134, Drunk and disorderly, dtd Nov 5, 2001
Applicant’s request to swap one duty day, dtd Nov 6, 2001
Sick in Quarters Chit Dec 2, 2001 to Dec 3, 2001
Result of Investigation concerning possible NJP for Article 134, dtd Dec 3, 2001 (2 pages)
USS ABRAHAM LINCOLN Offense Report dtd Dec 6, 2001
Report and Disposition of Offenses (Article 91), dtd Dec 11, 2001
Light Duty Chit (Dec 13, 2001 – Jan 14, 2002)  (PFB – neck/face, No Shaving)
Applicant’s Captain’s Mast Notification and Election of Rights (2 pages)
Service Record entry (14 Jan 2002) – Has 97 days TAD as Food Service Attendant
Light Duty Chit (Jan 15, 2002 – Feb 20, 2002)  (PFB – neck/face, No Shaving)
USS ABRAHAM LINCOLN Offense Report dtd Jan 15, 2002
Sick in Quarters Chit (Jan 23 – 24 Jan 02)
Applicant’s handwritten log (4 pages)
E-mail advisory concerning scheduling of Captain’s Mast dtd Jan 29, 2002 (2 pages)
Applicant’s Additional Charges (3 pages)
Applicant’s Restriction/Extra Duty Order dtd Feb 1, 2002 (2 pages)
Applicant’s unsigned request for appeal of charges dtd Feb 3, 2002
Record of Unauthorized Absent and Court Memorandum (3 pages)
Light Duty Chit (Feb 19, 2002 – Apr 19, 2002)  (PFB – neck/face, no Shaving – 2 mos)
E-mail advisory to attend IMPACT training dtd Feb 20, 2002 (3 pages)
E-mail advisory concerning Hearing test dtd Apr 25, 2002 (2 pages)
E-mail advisory concerning ASVAB re-test dtd Apr 26, 2002
Leave Request dtd May 1, 2002 (2 pages)
Light Duty Chit (May 20, 2002 – Jun 21, 2002)  (PFB – neck/face, No Shaving)
Medical Criteria For firefighting training dtd Jun 3, 2002
Light Duty Chit (Jun 3, 2002 – Jul 24, 2002)  (PFB – neck/face, no Shaving – 2 mos)
Evaluation Report & Counseling Record (From 01AUG04 To 02JUL15) (2 pages)
XO, USS ABRAHAM LINCOLN, ltr to Applicant (Class “A” Liberty Risk Designation) dtd Sep 2, 2002 (2 pages)
E-mail information concerning Applicant’s misconduct dtd Sep 29, 2002
Medical Memo dtd Oct 12, 2002, concerning Flight Deck Physical
XO, USS ABRAHAM LINCOLN, ltr to Applicant (Class “A” Liberty Risk Designation) dtd Oct 21, 2002 (2 pages)
Applicant’s Request Chit to be removed from Class C Liberty Status
Counseling Chit (2 pages)
Applicant’s Request Chit to start EAWS qualifications dtd Nov 6, 2002
Evaluation Report & Counseling Record (From 02JUL16 To 02NOV21) (2 pages)
Copies of Appointment slips (2 pages)
Unofficial polls taken by Applicant (8 pages)
Applicant’s handwritten notes (5 pages)

PART II - SUMMARY OF SERVICE

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

Inactive: USNR (DEP)	010221 - 010305	ELS – Moral Disqualification 
                                                                                    (Discharge date in error in 
                                                                                    service record – served 13 
                                                                                    days in DEP.)
	Inactive: USNR (DEP)	010409 - 010430	COG

Period of Service Under Review:

Date of Enlistment:  010501		Date of Discharge:  021205

Length of Service (years, months, days):

	Active:    01  07  02
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  34/44

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0 (2)	Behavior:  2.0 (2)		OTA:  2.5

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, MUC

Days of Unauthorized Absence:  3

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

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

Chronological Listing of Significant Service Events:

011219:	Medical Dept (Psychology):  This is a 21-year-old single, African-American male Airman Recruit with seven months of continuous active duty.  He is presently assigned TAD to S-2M Division from Air Department.  Pt referred himself for a psychological evaluation.  Evaluation consisted of a clinical interview, review of medical records, psychological-social history, and mental status exam.  Pt reported understanding the limits of confidentiality, privacy act rights, and agreed to eval.  Pt referred himself for a psychological eval because of concerns that he “can’t adapt to military life.”  He noted that he felt “stressed out and depressed” since reporting to command on 20 Aug 2001, and described a series of misadventures that had occurred to him since coming aboard ship during PIA.  
	Diagnoses:  	AXIS I:  V62.2, Occupational Problem
AXIS II:  301.9, Personality disorder NOS with Histrionic and Dependent traits.
	Sailor is judged not to a be at risk of imminent self-harm or harm to others or property…….Sailor’s chain of command is advised to formally counsel him on the necessity of conforming his attitudes and behavior to acceptable standards, and this counseling should be documented in his service record.  Future failure of satisfactory performance constitutes sufficient cause for administrative separation by local command on grounds of unsuitability for military service………  [EXTRACTED FROM APPLICANT’S SUPPORTING DOCUMENTATION.]

011220:	Retention Warning:  Advised of deficiency (you report that you feel stressed out and expressed, and that you do not have energy or appetite), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

020109:	Unauthorized absence from USS ABRAHAM LINCOLN.

020111:	Surrendered on board this date.

020201:	NJP for violation of UCMJ, Article 86 (2 specs):  Unauthorized absence and Failure to go appointed place of duty; violation of UCMJ Article 91 (2 Specs): Disrespect and insubordinate conduct; violation of UCMJ Article 92 (4 specs): Failure to obey order.
	Award:  Forfeiture of $546.00 pay per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

021119:	Applicant notified of intended recommendation for discharge with a least favorable characterization of General (Under Honorable Conditions) by reason of misconduct due to the commission of a serious offense.

021119:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights.

021121:	Commanding Officer, USS ABRAHAM LINCOLN, recommended discharge with a General (Under Honorable Conditions) by reason of misconduct due to the commission of a serious offense.  Commanding Officer’s comments (verbatim):  [AN D_ (Applicant) has consistently demonstrated an inability to adhere to basic military standards of discipline.  He has been counseled numerous times by various members of his department and consistently responds with indifference and lack of respect for authority.  If given a simple order, he cannot be trusted to obey it.  AN D_ (Applicant) has no further useful naval service to provide.  AN D_ (Applicant) is to be discharged from the naval service on the basis of Misconduct – Commission of Serious Offenses with a characterization of service as General (Un der Honorable Conditions).]

021203:	CO, TPU, Puget Sound, directed the Applicant's discharge with a General (under honorable conditions) by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20021205 with a general (under honorable conditions) for misconduct due to commission of a serious offense (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

Issue 1:  Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question.  No such impropriety or inequity is evident during the Applicant’s enlistment.  When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  A general discharge is warranted for behavior not sufficiently meritorious to warrant an honorable discharge.  The Applicant’s service was marred by nonjudicial punishment proceedings for violations of UCMJ Article 86, unauthorized absence, Article 91, disrespect and insubordinate conduct, and Article 92, failure to obey orders.  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.  Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant contends his discharge was the result of a fabricated medical condition to make him look like a bad sailor.  The Applicant further contends his chain of command ignored his pleas for help.  The evidence submitted by the Applicant indicates that he was diagnosed with an occupational problem and personality disorder by competent medical authority.  Nothing in the record supports the contention that the Applicant’s chain of command fabricated anything in an attempt to discredit him.  Likewise, the evidence of record does not support the Applicant’s contention that he was ignored by his chain of command.  The evidence submitted by the Applicant shows that he was counseled for minor disciplinary infractions such as unauthorized absence, sleeping during working hours, and disrespect towards senior petty officers.  When counseling failed to correct the Applicant’s conduct, the evidence shows he was awarded extra military instruction and eventually nonjudicial punishment.  Contrary to the Applicant’s claims, the evidence shows the Chain of Command was very active in its attempts to correct the Applicant’s behavior so that it may conform with the expected standards of good order and discipline in the Naval service.  As such, relief denied.

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.  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 02 until Present, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B.  In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 92, failure to obey order or regulation, if adjudged at a Special or General Court Martial

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.
.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review 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.