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Docket No. ND04-01432

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

 ex-OSSA, USN
Docket No. ND04-01432

Applicant’s Request

The application for discharge review was received on 20040913.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance discharge review before a traveling panel closest to Syracuse, New York.  The Applicant listed Veterans Affairs as the representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area.  The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary review was conducted in Washington, D.C. on 20050608.  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/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I had Mental health issues that lead to my Misconduct Pattern that Should have been recognized & treated before discharge.  
2.  I was never in the State of Mind to know what was happening.  My records Show highs and lows in evaluations, letter of Appreciation, etc.
3.  I was attacked Several times aboard Ship.  I was alone with no where to go for help.  I had Mental health issues I did not recognize or admit.  I was in denial.”

Documentation

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

Letter from Applicant to Veteran’s Affairs Office, dated August 23, 2004  (2 pages)
Letter to Mrs. K_, undated
News clipping featuring J. F. Kennedy Elementary School
Letter of recommendation from K_ J. W_, Applicant’s mother, dated August 3, 2004
Letter of recommendation from C_ F_, W_ M. F_, A_ F_, dated August 03, 2004
Letter of recommendation from S_ L. S_, Applicant’s sister, dated August 25, 2004   w/photo  (2 pages)
Letter from Veteran’s Affairs, J_ D. H_, State Veteran Counselor, dated September 1, 2004
Letter from Veteran’s Affairs, J_ D. H_, State Veteran Counselor, dated October 27, 2004
Letter from Veteran’s Affairs, J_ D. H_, State Veteran Counselor, dated February 10, 2005
Evaluation Report & Counseling Record, period of report from December 20, 2003 to March 26, 2004  (2 pages)
Administrative remarks, NAVPERS 1070/613  (3 pages)
Applicant’s Preseparation Counseling Checklist, dated April 02, 2004  (2 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	001215 - 001227	COG
	Active:  None

Period of Service Under Review:

Date of Enlistment:  001228		Date of Discharge:  040427

Length of Service (years, months, days):

	Active:    03  04  00
	Inactive:  None

Age at Entry:  23			Years Contracted:  4 (24 months extension)

Education Level:  13			AFQT:  85

Highest Rate:  OSSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.25 (4)		Behavior:  2.25 (4)		OTA:  2.36

Military Decorations:  None

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

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

Chronological Listing of Significant Service Events:

020424:	NJP for violation of UCMJ, Article 91:  Insubordinate conduct toward Warrant Officer, Noncommissioned officer, or Petty Officer.
	Award:  Forfeiture of $200.00 pay per month for 1 month, extra duty for 15 days.  No indication of appeal in the record.

020716:	NJP for violation of UCMJ, Article 113:  Misbehavior or sentinel or lookout.
	Award:  Forfeiture of $400.00 pay per month for 1 month, reduction to E-2.  No indication of appeal in the record.

020716:	Retention Warning:  Advised of deficiency (Commanding Officer’s NJP of 16JUL02 for UCMJ, Article 113 (Misbehavior of Sentinel or Lookout.)), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

030326:	NJP for violation of UCMJ, Article 86:  Failing to go to appointed place of duty.
Award:  Forfeiture of $718.00 pay per month for 2 months, restriction and extra duties for 45 days, reduction to E-2.  No indication of appeal in the record.
[Extracted from CO’s, USS VICKSBURG (CG 69) letter, dtd 04Apr20.]

040325:	Mental Health Evaluation:  Applicant diagnosed Axis I:  R/O ADHD, Axis II:  Personality Disorder NOS with schizotypal traits, Axis III:  Occupational problems.  No psychosis found.  Member is responsible for his behavior and should be held accountable for same.  We will follow up for counseling in coping skills.  Treatment plan recommended.

040329:	NJP for violation of UCMJ, Article 86:  Failing to go to appointed place of duty.
Award:  Confinement to 3 days bread and water.
[Extracted from CO’s, USS VICKSBURG (CG 69) letter, dtd 04Apr20.]

Unknown:	Administrative Board recommended discharge under other than honorable conditions.”
[Extracted from CO’s, USS VICKSBURG (CG 69) letter, dtd 04Apr20.]

040420:	Commanding Officer, USS VICKSBURG (CG69), recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. Commanding Officer’s comments (verbatim):  OSSA J_ A. S_ (Applicant)’s unruly and disrespectful behavior has negatively impacted VICKSBURG.  He has been found guilty of two violations of UCMJ Art 86 – failing to go to appointed place of duty, and four violations of UCMJ Art 91 – willful disobedience of a non commissioned officer, two charges of disrespect toward a Petty Officer and finally disrespect toward a Chief Petty Officer.  He has gone to Captain’s mast four times in a career that has spanned less than four years; each time given opportunity to redeem himself.  The man hours spent counseling, supervising, and disciplining OSSA S_ (Applicant) have been in vain.  He has been given every opportunity to correct his actions and behavior and has failed to do so.  He directly challenges the ideal of “good order and discipline.”  I fully endorse his separation from the United States Navy, on a Other Than Honorable discharge.

040426:	Commander, Carrier Group SIX, authorized the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

Complete discharge package unavailable

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040427 under other than honorable conditions for misconduct due to a pattern of misconduct (A).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).

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.  The Applicant implies that mental illness was the cause of his misconduct.  Notwithstanding the veracity of his claims, such a condition will not normally excuse a servicemember from legal liability for his misconduct, unless the Applicant can show a lack of mental responsibility through the presentation of substantial and credible evidence.  The evidence of record failed to demonstrate that the Applicant was unable to appreciate the nature and quality or the wrongfulness of his acts.  The Applicant received a mental health evaluation on 040325 by the staff psychologist of the Mayport Branch Clinic.  As a result of the examination, the Applicant was diagnosed with a personality orders and occupation problems.  Despite the Applicant’s contentions however, the psychologist found the Applicant responsible for his own behavior.  The Board found the conclusion of the staff psychologist sufficient evidence to establish that the Applicant was in fact responsible for his misconduct.  As such, his discharge was proper and equitable.  Relief denied.

Issue 2.  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.  An under other than honorable conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by insubordinate conduct, misbehavior of a lookout, and unauthorized absences.  This misconduct resulted in four separate nonjudicial punishment proceedings for violations of UCMJ Articles 86, 91, and 113.  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.

Issue 3.  The Applicant suggests his misconduct was the result of being attacked while in the Navy and having nowhere to turn for help.  The Applicant must establish his issues to the satisfaction of the Board through the presentation of substantial and credible evidence.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that the he was the victim of violence and his command refused to help him.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  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 2002 until Present, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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

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

D.  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.

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.