Author: CAP
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Docket No. ND05-00900

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

FOR OFFICIAL USE ONLY

ex-FT3, USN
Docket No. ND05-00900

Applicant’s Request

The application for discharge review was received on 20050504.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and the Narrative Reason for Separation be changed to “Retired- TRF to Fleet Reserve.”  The Applicant requests a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area.  The Applicant designated Disabled American Veterans as the representative on the DD Form 293.

Decision

A personal appearance hearing review was conducted in Washington, D.C. on 20060222.  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 4 to 1 that the character of the discharge and reason for discharge shall not change.  The discharge shall remain General (Under Honorable Conditions) by reason of convenience of the government on the basis of a diagnosed personality disorder.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, submitted at the time of the hearing:

“Issue 1:  Equity in relief regarding the character of discharge, be upgraded to ‘Honorable.’

Issue 2:  The applicant’s contentions as set forth on DD293 reveal he suffers from Major Depression/P.T.S.D.  He states he was sexually assaulted on August 13, 2000, on Naval Station Guam, while on active duty and as a result unable to deal with the U. S. Navy.  Upon discharge from military service 6 months; he sought mental health treatment at the VA Hospital in Baltimore MD; and has been in treatment and Psychiatrist Diagnosis:  Axis I:  P.T.S.D. due to sexual assault.  He has been totally disabled for Social Security since August of 2001.  The Dept. of Veterans’ Affairs granted service connection for P.T.S.D. effective:  August 16, 2001.  Major Depression.”

Documentation

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

Ltr from B_ J. R_, PhD, CSP, dtd February 21, 2006
Social Security Administration Disability Claim, dtd October 11, 2005 (2 pages)
Applicant’s sworn affidavit, dated February 18, 2005 (2 pages)
Sworn affidavit of C_ J_ B_, dated February 21, 2005
E-mail from K_ B_, dated February 19, 2006
E-mail from J_ M_, dated August 14, 2001
Applicant’s DD Form 214
Ltr from Applicant to K_ G_, undated
Ltr from Disabled American Veterans National Service Office, K_ L. G_, Supervisor National Service Office, dtd April 26, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19970307 – 19970608		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19970609		Date of Discharge:  20010815

Length of Service (years, months, days):

	Active:    04  02  07  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:	None
	Confinement:			None

Age at Entry:  17 (Parental Consent)

Years Contracted:  4 (24 month extension)

Education Level:  12				AFQT:  86

Highest Rate:  FT3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.00 (4) 		Behavior:  2.00 (4) 			OTA:  2.13 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/PERSONALITY DISORDER, authority:  MILPERSMAN, Article 1910-122 (formerly 3620225).

Chronological Listing of Significant Service Events: 

981212:	Chronological Record of Medical Care:  S:  Suicidal Ideations.  Pt referred to MDR SP talking to others about killing himself.  A:  Depressive Disorder not otherwise specified – suicide ideation.  Disposition:  Full duty.

990329:	Chronological Record of Medical Care:  Axis II:  Obsessive Compulsive Personality Disorder, Axis III:  None.  The patient is considered unsuitable for military service.  The member has a longstanding disorder of character and behavior, which is of such severity that it renders the member unsuitable for further military service.  The member does not presently require, and will not benefit from hospitalization or psychiatric treatment.  Although the member is not presently considered suicidal or homicidal, the member is judged to represent a continuing danger to self or others if retained in the military service.

991115:	CAAC evaluation:  Applicant diagnosed alcohol dependent.  Applicant referred to Tri Service Addictions Recovery Facility (TRISARF) for treatment and recommended to abstain from alcohol use.

991123:	Applicant admitted to TRISARF.

991214:	Chronological Record of Medical Care:  Patient is reportedly being charged with malingering, also undergoing treatment for ETOH dependence.  A:  Reactive depression, moderate to severe but without suicidal ideation and appropriate for his situation.

991229:	Chronological Record of Medical Care:  Applicant seen for routine follow-up after discharge from TRISARF with ER evaluation for suicidal ideation.  PT completed TRISARF program.  PT denied having any suicidal ideation.

000131:	Chronological Record of Medical Care:  PT is no longer in denial of his alcohol dependence and he is motivated to stay sober.  It appears that a large portion of his problems with functioning were due to his chronic drinking.  He appears to be very motivated to continue to work on himself

001016:	Inpatient Disposition Admission Diagnosis:  Adjustment Disorder, depressed.  Discharge Diagnosis:  1.  Adjustment Disorder, depressed, 2. Personality Disorder NOS, Schizoid, Borderline, Antisocial Features, 4.  Alcohol Dependence, early remission.  Applicant pulled out a knife and threatened members of the Board with it including the Commanding Officer.  The member was taken to medical, became combative, refused to give up his knife and was subsequently chemically and physically restrained.  The patient has been recommended twice for administrative separation for personality reasons twice in 1998 and 1999.  The member has failed outpatient alcohol rehabilitation and continued to drink resulting in gastritis.  

010320:	Applicant counseled for writing tickets on base when told not to.  Applicant UA from appointed place of duty 0730 to 0800.

010326:	Applicant counseled for carrying a sticker scraper when told not to.

010328:	Applicant counseled for false accusations about Chain of Command.

010328:	Applicant counseled for disrespect to a senior petty officer.

010411:	Witness Statement about a homicide threat made by Applicant on 010409:  “FT3 L_ (Applicant) was on the smoke deck at Snyder Hall around 1830 to 1900,  He had stated ‘if I had a gun I would start shooting everyone who is surface warfare (SW) qualified.’  I told FT3 L_, ‘that is not something to joke about.  If the wrong person heard you, you would be in some deep shit.’  He told me, ‘it’s ok, I have a Chief who is (SS) qualified and he can get me out of trouble.’  A little worried I left the smoke deck area knowing that previously FT3 L_ was admitted to 1 West at Balboa Hospital.”  

010720:	Medical evaluation by CDR P. S. H_, Staff Psychiatrist:
History:  FT3 L_ (Applicant) is an individual with a complicated history.  He was initially evaluated in Hawaii 3 years ago and recommended for administrative separation.  He requested mast and was eventually seen by SUBPAC and given an opportunity to redeem himself.  He was assigned to the USS Frank Cable, a sub tender home ported in Guam.  While there he alleged that another sailor sexually assaulted him.  He had several episodes of minor misconduct and was eventually admitted to Naval Hospital Guam after he pulled a knife out of his pocket and placed it on the desk of the CO during mast proceedings.  He was placed on limited duty and medevac’d to Naval Medical Center San Diego.  He was assigned to the NAVSTA security force and continued to display evidence of misconduct failing room inspections, disobeying order, gun-decking vehicle inspections, etc.  He received numerous counseling chits.  He often cited his symptoms of anxiety and depression related to his traumatic assault experience as the cause for his misconduct.  He displayed such odd behavior that it was felt that he might have a psychotic disorder, so he was placed on TAD to the NMCSD Med Hold Company for further testing and more intensive treatment.  Testing revealed a personality disorder and other profiles consistent with possible history of psychological trauma.  He was allowed to remaining Med Hold, but continued to display a consistent pattern of disruptive behavior.  He was counseled on this and his behavior improved for a time, but in recent weeks it has worsened to the point that it is severely affecting the well being of other patients.

Last night, he apparently invited another Med Hold patient to his room and the two of them became drunk.  The other patient took a window scraper and attempted to commit suicide by cutting his own throat.  L_ (Applicant) awoke and called police resulting on both of them being seen in the ER.  L_ (Applicant)’s BAL was 0.14 and he was eventually released.  LT P_  and HM2 C_, the Psych Med Hold OIC and LPO reported that FT3 L_ (Applicant) had behaved in a grossly inappropriate manner in by “hitting” on another sailor, implying to others that they were gay lovers and once even sat down in his lap and was seen grinding his hips into the sailor in a sexually suggestive manner.  In addition, he apparently returned 2 days late from leave with forged documents alleging that airline problems had caused his delay.  Today, he expressed remorse for his actions in a rather unconvincing manner and has no good explanation for his behavior.  The history noted above calls in to serious question the patient’s previous diagnoses.  He has alleged that he was sexually assaulted, and yet behaves in a manner that calls into doubt his story.  He has been drinking while taking antidepressants so his other symptoms are suspect as well.  His statements are seen as unreliable.  The diagnostic clarity that we can achieve seems to be in terms of his history of severe personality disorder.

Diagnoses:

AXIS I:	Alcohol Abuse
AXIS II:	Personality disorder not otherwise specified with schizoid, avoidant, narcissistic and antisocial traits.
AXIS III:	No diagnosis
AXIS IV:	Occupational problems
AXIS V:	GAF 50, past year 60

The service member is deemed unsuitable for continued military service on the basis of the above diagnosis.  He has consistently demonstrated a profound inability to comply with basis standards of personal conduct and will require extraordinary efforts on the part of there supervisors to manage his behaviors and elicit marginal performance in even the most basic work setting.

The service member is not considered potentially dangerous at this time; he is at risk for severe mood swings that could result in potentially dangerous behavior.

Recommendations:

a.  Precautions:  None
b.  The service member is recommended for administrative separation per applicable service directive.  The service member manifests a longstanding disorder of character, behavior and adaptability that is of such severity to preclude adequate military service.  He represents a significant danger of harm to self or others if retained on active service due to his lifelong pattern of maladaptive responses to routine personal and/or work related stresses.
c.  The service member is not suitable for continued access to classified material and any security clearance should be rescinded.

010725:	Applicant notified of intended recommendation for discharge by reason of convenience of the Government – Personality Disorder.  Applicant notified that if separation is approved, the least favorable characterization of service possible is general (under honorable conditions).

010801:	Applicant advised of rights and having consulted with counsel, elected to obtain copies of the documents used to support the basis for the separation, to submit statements for consideration by the separation authority and to General Court-Martial Convening Authority review.

010803:	Commanding Officer, Naval Station, San Diego, recommended to Commander, Navy Region Southwest that the Applicant be discharged with a general (under honorable conditions) by reason of convenience of the government on the basis of a diagnosed personality disorder.  Commanding Officer’s comments:  “… FT3 L_ (Applicant) is deemed unsuitable for continued military service.  He has consistently demonstrated a profound inability to comply with basic standards of personal conduct and will require extraordinary efforts on the part of his supervisors to manage his behavior and elicit even marginal performance in even the most basic work setting.  Such actions are intolerable and are not in keeping with the good order and discipline expected of our Sailors.  He has proven that he has no further potential for future Naval Service.

Based on the above information, I strongly recommend that FT3 L_ (Applicant) be separated from the Naval Service with a characterization of a General Discharge by reason of Convenience of the Government due to personality disorder.”

010806:	Commander, Navy Region, Southwest directed Applicant’s discharge with a general (under honorable conditions) by reason of convenience of the government on the basis of a personality disorder.

031121:	NDRB documentary record review Docket Number ND03-00311 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010815 by reason of convenience of the government on the basis of a diagnosed personality disorder (A) with a service characterization of general (under honorable conditions).  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 (B and C).

Under applicable regulations, separations based on a personality disorder should be honorable unless a general (under honorable conditions) or an entry-level separation is warranted.  A general discharge may be warranted if the Applicant’s service contains records of nonjudicial punishments, disciplinary actions, or if other significant negative aspects existed, which outweighed the positive aspects of the member’s period of service.  Additionally, a general discharge may be warranted if the Applicant’s performance evaluation averages are not sufficient to merit an honorable discharge.  The Applicant’s record contains no evidence of NJP or other formal disciplinary action, however the evidence of record did indicate that the Applicant was counseled several times for false accusations and disrespect towards his superiors.  Based upon this evidence, along with the Applicant’s poor performance evaluation averages, the Board concluded that the discharge was both proper and equitable.  Relief denied.

The Applicant contends that his discharge should be upgraded because he was suffering from assorted mental conditions while on active duty.  In support of his contention, the Applicant has submitted evidence showing that he has been diagnosed as having a service connected disability, post traumatic stress disorder, as determined by the Veterans’ Administration and the Social Security Administration.  Although the Board did not dispute the Applicant’s mental problems, a mental condition will not automatically excuse a servicemember from legal liability for his misconduct.  The Applicant must show a lack of mental responsibility by virtue of being unable to appreciate the nature and quality or the wrongfulness of his acts.  There is no evidence in the record, nor has the Applicant produced any evidence to show that because of the diagnosed mental conditions, he did not possess the capacity to appreciate the wrongfulness of his conduct, or that he was unable to conform his conduct to the requirements of the law.  Based upon a lack of evidence to the contrary, the Board concluded that the Applicant’s mental condition was not of such severity to relieve him of responsibility for his misconduct.  As such, the Board found the discharge proper and equitable as issued.  Relief denied.

The following is provided for the edification of the Applicant.  The Applicant has exhausted his opportunities for review by the NDRB.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 33, effective 
14 Aug 2001 until 21 Aug 2002, Article 1910-122 (formerly 3620225), Separation By Reason of Convenience of the Government - Personality Disorder. 

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.

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