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

 ex-SKSA, USN
Docket No. ND05-00170

Applicant’s Request

The application for discharge review was received on 20041103.  The Applicant requests the characterization of service received at the time of discharge be changed to general (under honorable conditions) and the reason for the discharge be changed to “GENERAL.”  The Applicant requests a documentary record review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20050201.  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 3 to 2 that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I respectfully request my discharge upgraded.  My discharge was inequitable because it was based on one incident in 31 months of service with an exemplary military record prior to the incident.  My post-service conduct has been exemplary.  I have been a hard worker for the past 12 years, and an upstanding person in my community.  I regret my actions in my discharge, I was young and immature.  I obtained an Associate Degree in Automotive Techniques & Management in 1996 where I was top of my class.  

I am now a father of three boys of my own and I want them to grow up to make better choices than I have made.  I believe an upgrade in my discharge will give me a chance to get a better job and provide a better life for my family.”

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	880924 - 890725	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  890726		Date of Discharge:  920305

Length of Service (years, months, days):

	Active:    02  07  10
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  51

Highest Rate:  SK3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.53 (3)		Behavior:  3.66 (3)		OTA:  3.80

Military Decorations:  None

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

Days of Unauthorized Absence:  7

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

910703:	Medical Officers’ Accident/Injury report indicates Applicant was moving a piece of metal from his front seat to the back seat of his car when he dropped it on his foot.

910704:	Place on Medical Hold.

910726:	Applicant referred to Chaplain for depression and anti-social behavior.  The Chaplain found the Applicant to be well dressed and oriented.  Mood was marked by listlessness, slow speech, and unfocused thoughts.  Applicant related a history of erratic and impulsive behavior and his phobia of the sea, ships, and wish to be separated from active duty.  Applicant unable to verbalize his anxieties.  Did not show suicidal tendency.  The Chaplain wishes to have the Applicant evaluated for tendency to self inflict injury, suicidal ideation and fitness for duty.  Applicant volunteered for this evaluation and is willing to submit for evaluation.    

910729:	Medical Officer’s evaluation states applicant does not like ships being underway and the closeness of the environment.  Sometimes sleeps in car to stay off ship.  Stated left to drive around and think.  Wants to be away from ship.  Relates to dropping metal on foot to get off ship during last underway period, but does not relate to suicides ideations.

910808:	NJP for violation of UCMJ, Article 86:  Absence without leave on or about, violation of UCMJ Article 115: Malingering.
	Award:  Forfeiture of $481.65 pay per month for 2 months, reduction to E-3.  No indication of appeal in the record.

910809:	Applicant notified of intended recommendation for discharge with a least favorable characterization of honorable by reason of convenience of the government due to personality disorder

910809:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

910827:	Commanding Officer recommended discharge under other than honorable conditions by reason of convenience of the government on the basis of personality disorder.  Commanding Officer’s comments:  SKSN S_ was evaluated at Naval Hospital, Portsmouth, on 29 July 1991 and was diagnosed as having an adjustment disorder—specifically a personality disorder with antisocial and immature behaviors.  Member was also treated at Portsmouth Naval Hospital on 4 July 1991 for a foot injury which SKSN S_ later admitted to be self-inflicted.  Since reporting on board 22 July 1991, SKSN S_ has not interacted nor attempted to become an active member of the CONCORD team.  He was unresponsive to the attempts by his chain of command to help him.  Based on the psychiatric evaluation, I concur that SKSN S_ is a definite risk to himself or to others on board CONCORD.  Therefore I strongly recommend immediate separation. 

911007:	BUPERS held Applicant’s separation in abeyance, Applicant must be processed for all misconduct in current enlistment.

911015:	Applicant notified of intended recommendation for discharge with a least favorable characterization of under other than honorable conditions by reason of convenience of the government due to personality disorder and misconduct due to the commission of a serious offense.

911015:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights.

911023:	Commanding Officer recommended discharge under other than honorable conditions by reason of convenience of the government on the basis of personality disorder and misconduct due to the commission of a serious offense.  

911106:	BUPERS held separation in abeyance, Applicant informed least favorable characterization is honorable, must be informed least favorable characterization is under other than honorable conditions.

911115:	Applicant notified of intended recommendation for discharge with a least favorable characterization of under other than honorable conditions by reason of convenience of the government due to personality disorder

911115:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights.

920205:	BUPERS held separation in abeyance, Applicant not informed of all reasons for which he was processed.

920219:	Applicant notified of intended recommendation for discharge with a least favorable characterization of under other than honorable conditions by reason of convenience of the government due to personality disorder and misconduct due to the commission of a serious offense.

920219:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights.

920303:	BUPERS directed the Applicant's discharge under other than 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 19920305 under other than honorable conditions for misconduct due to commission of a serious offense (A and B).  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 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.  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 a seven day unauthorized absence and an incident in which he intentionally injured himself so that he might be disqualified from further sea service.  This misconduct resulted in a nonjudicial punishment proceeding for violations of UCMJ Articles 86, unauthorized absence and 115, malingering.  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.

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 naval service.  The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any documentation for the Board to consider.  Relief denied.

There is no requirement or law that grants recharacterization solely on the issue of enhancing employment opportunities and this issue does not serve to provide a foundation upon which the Board can grant relief.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  

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), effective 15 Aug 91 until 
04 Mar 93, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 115, malingering, 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