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

FOR OFFICIAL USE ONLY

 ex-AA, USN
Docket No. ND05-01083

Applicant’s Request

The application for discharge review was received on 20050614.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing discharge review before a traveling panel closest to Memphis, TN.  The Applicant did not designate a 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, D.C. Metropolitan area.  The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing. 

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051117.  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 for discharge shall not change.  The discharge shall remain General (Under 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:

“There were several witnesses and evidence that I was not given notice I needed and I was never informed of my captain’s mast until 1 hour before and my witnesses could not show to mast due to work and not informed by my lpo MM1 G_ after informing me he would gather my witnesses.  Also MM1 G_ gave false and misleading information to CO and CSO of Yokosuka Naval Base.  LNC R_ also made threats if I appealed my captain’s mast or request a court martial.  She would make sure I got an UOTHC or worse plus brig time.  When I tried to inform the CMC or other personal of this she tried to have another mast and told me the charge would be UA or anything she could think of.”

Documentation

Only the service and medical records were reviewed.  The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20010531 - 20010702	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20010703		Date of Discharge:  20041013

Length of Service (years, months, days):

	Active:    03  03  11  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  none
	Confinement:		  none

Age at Entry:  18 

Years Contracted:  4 (12 month extension)

Education Level:  13				AFQT:  52

Highest Rate:  ADAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.5 (2) 		Behavior:  2.5 (2) 		OTA:  2.50 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal

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

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

Chronological Listing of Significant Service Events: 

020320:	Retention Warning:  Advised of deficiency (Violation of Art 86 UCMJ Unauthorized absence, member was U.A. from Barrack after Phase A liberty expiration 15 March 2002.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

020603:	Naval Hospital Pensacola, FL sick call report.  Applicant examined for sleeping difficulties/malingering.  Applicant states that he has not slept for 7 days.  Denies napping during the day.  Denies excess worry, excessive energy.  Feels exhausted.  LBP and not processing.  LIMDU chit as needed, suspected malingering.  

030716:	NJP for violation of UCMJ, Article 92: Failure to obey lawful general order.
Award:  Forfeiture of $746 per month for 2 months, restriction for 60 days.  No indication of appeal in the record.

030808:	Retention Warning:  Advised of deficiency (VUCMJ Art 92-Failure to obey a lawful general order.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

040105:	Abbreviated Limited Duty Medical Board report provided by USNH Yokosuka, Japan.  Applicant diagnosed with complicated migraines and syncope.  Applicant experienced multiple episodes of syncope secondary to complicated migraines.  MRI was negative for masses.  Applicant has been on medical hold for 2 months while starting on medication but still having occasional episodes of syncope despite medications.  Episodes now more frequent and there may be an anxiety component.  Mental health consult, neuro consult, and medical board will be dictated.

040128:	U. S. Naval Hospital Yokosuka, Japan Mental Health Department.  Applicant examined as routine follow-up.  
	Diagnostic Assessment:  Axis IV occupational problems.
	Plan:  Applicant psychologically fit for full duty and responsible for his actions.  Patient is not currently suicidal or homicidal and agrees to seek emergent care if he felt so.  Low risk for suicide: no previous suicide attempts, no past or current suicide ideation.  Patient is to follow-up for brief psychotherapy to address anxiety.  Continue medication management with primary care.  

040526:	NJP for violation of UCMJ, Article 86: Absence without leave.
Violation of UCMJ, Article 92: Failure to obey order or regulation.
Violation of UCMJ, Article 107: False official statements.
Violation of UCMJ, Article 134: False pass offense.
	Award:  Forfeiture of $747 per month for 2 months, correctional custody for 30 days, reduction to E-2.  No indication of appeal in the record.

040825:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct pattern of misconduct.

040907:	Applicant advised of rights and having elected to consult with counsel, elected to waive all rights except the right to submit a written statement for consideration by the separation authority and the right to obtain copies of the documents used to support the basis for the separation.

040915:	Commander, Fleet Activities, Yokosuka recommended discharge with a general (under honorable conditions) by reason of misconduct pattern of misconduct.  Commanding Officer’s comments:  “After reviewing enclosures (1) through (6), I strongly recommend that misconduct be found and AA W_ (Applicant) be separated from the Naval Service with a characterization of service as General (Under Honorable Conditions).  His pattern of misconduct clearly demonstrates he has no potential for further service and runs afoul of the Navy’s Core Values.”

040920:	Commander, U. S. Naval Forces, Japan, directed the Applicant's discharge with a general (under honorable conditions) by reason of misconduct pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20041013 by reason of misconduct due to a pattern of misconduct (A and B) 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 (C and D).  

In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.  Specifically, the Applicant alleged that his Leading Petty Officer, his Command Master Chief, and a Legalman acted improperly before and after his Captain’s Mast on 20040526, resulting in his general discharge. The record, however, contains no evidence of any wrongdoing by the government or anyone involved in the discharge process.  The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary.  As such, this Board presumed that Applicant’s discharge was regular in all respects.  Relief denied.

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 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 2 nonjudicial punishment proceedings for violations of Articles 86, 92, 107, and 134 of the UCMJ.  Violations of UCMJ Articles 92, 107, and 134 are considered to be serious offenses.  In addition, the Applicant received 2 retention warnings.  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 and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted

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), re-issued October 2002, effective 22 Aug 2002 until 25 April 2005, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

B.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 92, failure to obey order or regulation, Article 107, false official statement, and Article 134, false pass offense.

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

D.  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