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Docket No. ND05-01059

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

FOR OFFICIAL USE ONLY

 ex-SA, USN
Docket No. ND05-01059

Applicant’s Request

The application for discharge review was received on 20050606.  The Applicant requests the Discharge 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060119.  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 and reason for discharge shall not change.  The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to a pattern of misconduct.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I’m mentally unstable and was phycially ill because of migraines one doctor thought I had a tumor but I was released before any tests were conducted.  I was also suicidal & still am at times.”

Documentation

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

Applicant’s DD Form 149
Appointment of veterans service organization as claimant’s representative, dtd March 22, 2005
Report of psychological evaluation, dtd September 21, 2004 (3 pages)
Letter to Applicant from Board for Correction of Naval Records, dtd May 19, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20000131 - 20000208	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20000209		Date of Discharge:  20031015

Length of Service (years, months, days):

	Active:    03  08  07  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:	29 days
	Confinement:			None

Age at Entry:  19

Years Contracted:  4 (3 month extension)

Education Level:  9				AFQT:  73

Highest Rate:  MSSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.50 (4)			Behavior:  1.75 (4)		OTA:  2.29

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal, Sea Service Deployment Ribbon, Armed Forces Expeditionary Ribbon, Navy “E” Ribbon, Meritorious Unit Commendation

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

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

Chronological Listing of Significant Service Events: 

010713:	Retention Warning:  Advised of deficiency (Failed to meet minimum requirements of the MS rating, military bearing and personal conduct are well below standards, personal hygiene is severely lacking), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

010820:	NJP for violation of UCMJ, Article 91:  Insubordinate conduct toward Warrant Officer, Noncommissioned Officer, or Petty Officer.
	Award:  Correctional custody unit for 30 days.  No indication of appeal in the record.

020314:	NJP for violation of UCMJ, Article 86:  (Absence without leave).
	Award:  Forfeiture of $100.00 pay per month for 2 months, restriction and extra duty for 30 days, reduction to E-2.  No indication of appeal in the record.

020315:	Retention Warning:  Advised of deficiency (CO’s Mast of 14 March 2002, Violation of UCMJ Article 86 (Absence without leave.) notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

030429:	Applicant to unauthorized absence at 0001 on 030429.

030528:	Applicant from unauthorized absence at 1030 on 030528 (29 days/surrendered).

030919:	NJP for violation of UCMJ, Article 86:  Unauthorized absentee from USS CLEVELAND (LPD7) from 29Apr03 to 29May03.
	Award:  Forfeiture of $645.00 pay per month for 2 months, restriction for 30 days, reduction to E-2.  Forfeiture suspended for 6 months.  No indication of appeal in the record.

030923:	Applicant notified of intended recommendation for discharge by reason of misconduct-commission of a serious offense and misconduct-pattern of misconduct.  Applicant notified that the least favorable characterization of service possible is under other than honorable conditions.

030923:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

030929:	Commanding Officer, Navy Region Southwest Transient Personnel Unit, recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and pattern of misconduct.  Commanding Officer’s comments:  “SA S_(Applicant)’s multiple violations of the UCMJ preclude his further retention in the Naval Service.  I strongly recommend his separation from the Naval Service with an Other Than Honorable Discharge by reason of misconduct due to commission of a serious offense and pattern of misconduct.”

031003:	Commander, Navy Region Southwest directed the Applicant's discharge under other than honorable conditions by reason of misconduct - pattern of discreditable behavior with civil or military authorities.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20031015 by reason of misconduct due to a pattern of misconduct (A) with a service characterization of under other than 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).  The Board presumed regularity in the conduct of governmental affairs (D).

The Applicant contends that his discharge should be upgraded because he was suffering from a mental condition while on active duty.  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.  The Applicant’s record contains no evidence that he was suffering from a psychiatric condition at the time of his service.  There is a presumption of regularity in the conduct of governmental affairs.  This presumption permits the Board to presume that the Applicant was mentally competent and legally responsible for his misconduct.  The Applicant bears the burden of establishing his issues 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 he was suffering from mental disease at the time of his service.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  As such, the Board found the discharge proper and equitable as issued.  Relief denied.

The Board did note that the Applicant submitted evidence of mental problems since his discharge from the Naval service.  Although the Board sympathizes with the Applicant’s current hardships, such issues are not normally considered a ground for relief.  As such, the Board found the discharge proper and equitable as issued.  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, Para 211, Regularity of Government Affairs.

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