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Docket No. ND06-00155

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

FOR OFFICIAL USE ONLY

 ex-EM2, USN
Docket No. ND06-00155

Applicant’s Request

The application for discharge review was received on 20051103.  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 20060908.  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 General (Under Honorable Conditions) by reason of misconduct due to commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application: 

“My discharge was inequitable because it was based on one isolated incident in nearly 50 months of service with no other adverse action.”

“Served over four years with outstanding service.  Appealed UCMJ prior to discharge, appeal did not come back in time or denied.  I was not informed.  I did not try for discharge immediately.  I did try to work through the issues.  The multiple transfers show this and neither transfer was for negative reasons.” [Extracted from DD From 293 dtd May 25, 2006]
     
Documentation

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

Ltr of Commendation for service from June to December 2002
Ltr of Commendation for service from January to July 2003
Applicant’s DD Form 214 (member 4) (2 copies)
Applicant’s DD Form 214 (member 1) (2 copies)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	20000308 – 20000529		COG
	Active:   USN 			20000530 – 20020719		HON

Period of Service Under Review:

Date of Enlistment:  20020720		Date of Discharge:  20040819

Length of Service (years, months, days):

	Active:    02  01  00  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  none
	Confinement:		  none

Age at Entry:  20

Years Contracted:  6

Education Level:  11				AFQT:  91

Highest Rate:  EM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.3 (3)		Behavior:  2.3 (3) 		OTA:  2.30

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  First Good Conduct Medal for period ending 03MAY29, National Defense Service Medal, Navy Pistol Marksmanship Ribbon.

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  MILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events: 

020720:	Reenlisted for 6 years.

040414:	Medical evaluation by Mental Health Department, Naval Ambulatory Care Center, Groton, CT.
	Symptoms:  “I just can’t do it anymore...I can’t focus or concentrate I feel helpless.”  This 21y/o, single, male was seen on consultation after he presented to medical with symptoms of depression which make him unable to do his work aboard boat.
	Assessment:
	AXIS I:  Adjustment Disorder with depressed mood
	AXIS II:  R/O Personality disorder
	Plan:  Member is considered psychiatrically unfit for duty.  A limited duty board will be done on this young man.  He has returned for his scheduled three-week appointment to complete his medical board.  In the meantime, he should continue to be seen by his social worker in Portsmouth.  The above plan was discussed with the patient , who stated his understanding and agreement.

040728:	Applicant involved in altercations with Sub base Police which resulted in him being taken Emergency Room after he was pepper sprayed for what was interpreted by police as belligerent behavior.  [Extracted from medical entry dated 040802.]

040802:	Medical evaluation by Mental Health Department, Naval Ambulatory Care Center, Groton, CT.
	Symptoms:  21 y/o, single male was placed on a limited duty board (April 2004) for a sever adjustment disorder, which manifested in severe depression and anxiety attacks.  Since that time he has been treated with psychotropic medications and weekly psychotherapy.  His condition has waxed and waned.  Recently he was involved in altercations with Sub base Police which resulted in him being taken to L an M Emergency Room on 28 July after he was pepper sprayed for what was interpreted by police has [sic] belligerent behavior.  Two days later he became involved in a verbal altercation with a senior chief petty officer that is continuing to be investigated.
	Assessment:
AXIS I: Adjustment Disorder with depressed and anxious mood
	AXIS II: Personality Disorder NOS with borderline and avoidant features.
	Plan: Member is considered psychiatrically unsuitable for further naval service.  His very severe personality disorder has become overt and he has become a danger to himself and others in my opinion.  Should he remain on active duty, he is at high risk for harming himself or others.  I very strongly recommend that his command consider discharging him via expeditious administrative separation at the convenience of the government.  He will continue to be followed by mental health and his medication will be continued.  He will need follow-up at a VA upon release from active duty.  The above plan was discussed with the patient, who stated his understanding and agreement.

040804:	NJP for violation of UCMJ, Article 91: Willful disobedience of Senior and Master Chief Petty Officers, and disrespect towards a Master Chief Petty Officer.
	Spec 1: In that EM2 (SS) J_ D. F_ (Applicant), U.S. Navy Submarine Support Facility New London, Groton, Connecticut, on active duty, having received a lawful order from CSCS S_ B_, U.S. Navy, a senior chief petty officer, then known by the said EM2(SS) F_ (Applicant) to be a senior chief petty officer, to roll down his uniform shirt sleeves, or words to that effect, an order which it was his duty to obey, did, at Naval Submarine Base New London, Groton, Connecticut, on or about 30 July 2004, willfully disobey the same.
	Spec 2: In that EM2 (SS) J_ D. F_ (Applicant), U.S. Navy Submarine Support Facility New London, Groton, Connecticut, on active duty, having received a lawful order from MMCM (SS) T_ D. R_, U.S. Navy, a master chief petty officer, then known by the said EM2(SS) F_ (Applicant) to be a master chief petty officer, to stand fast and behave with proper military bearing, or words to that effect, an order which it was his duty to obey, did, at Naval Submarine Base New London, Groton, Connecticut, on or about 30 July 2004, willfully disobey the same.
Spec 3: In that EM2 (SS) J_ D. F_ (Applicant), U.S. Navy Submarine Support Facility New London, Groton, Connecticut, on active duty, on or about 30 July 2004, was disrespectful in language and deportment toward MMCM (SS) T_ D. R_, U.S. Navy, a master chief petty officer, then known by the said EM2(SS) F_ (Applicant) to be a master chief petty officer, who was then in the execution of his office, by saying to him, “I will have the CO direct you to behave properly as a Chief Petty Officer should,” and “You can’t yell at me, I’m leaving,” or words to that effect, while contemptuously waking away from the said MMCM (SS) R_.
Violation of UCMJ, Article 117: (2 Specs), Provoking speech.
	Spec 1: In that EM2 (SS) J_ D. F_ (Applicant), U.S. Navy Submarine Support Facility New London, Groton, Connecticut, on active duty, did, at Naval Submarine Base New London, Groton, Connecticut, on or about 30 July 2004, wrongfully use provoking words, to wit: “if you touch me, you will be sorry,” or words to that effect, toward CSCS S_ B_, U.S. Navy.
Spec 2: In that EM2 (SS) J_ D. F_ (Applicant), U.S. Navy Submarine Support Facility New London, Groton, Connecticut, on active duty, did, at Naval Submarine Base New London, Groton, Connecticut, on or about 30 July 2004, wrongfully use provoking words, to wit: “You better stop threatening me, or else,” or words to that effect, toward MMCM(SS) T_ D. R_, U.S Navy.
Award:  Forfeiture of $907.00 per month for 1 month, reduction in rate (suspended for 6 months).  No indication of appeal in the record.

040804:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct commission of a serious offense and convenience of the government due to personality disorder.

040804:	Applicant advised of rights and having elected not to consult with counsel, elected the right to submit a written statement for consideration by separation authority and to obtain copies of the documents used to support the basis for the separation.

040806:	Commanding Officer, Naval Submarine Support Facility New London, recommended Applicant’s general (under honorable conditions) discharge by reason of convenience of the government due to a personality disorder and by reason of misconduct due to commission of a serious offense.  Commanding Officer’s comments:  “EM2 F_ (Applicant) was diagnosed with a personality disorder by Dr. J_ H. W_, a mental health professional specializing in clinical psychology.  Dr. W_ concluded that EM2 F_ (Applicant) suffers from a severe personality disorder that renders him psychiatrically unsuitable for further military service.  He considers EM2 F_ (Applicant) a danger to himself and others.  Accordingly, I recommend EM2 F_ (Applicant) be administratively separated from the Navy and, based on the recent incidents of misconduct and resulting non-judicial punishment, recommend his service be characterized as General.”

040810:	GCMCA, Commander, Submarine Group 2, directed Applicant's general (under honorable conditions) discharge by reason of misconduct commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040819 by reason of misconduct due to commission of a serious offense (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).  

The Applicant contends that his discharge is inequitable because “it was based on one isolated incident in nearly 50 months of service.”  Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  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 nonjudicial punishment proceedings for violations of Articles 91 and 117 of the UCMJ.  Violations of Article 91 of the UCMJ are considered serious offenses for which a punitive discharge is authorized if adjudged as part of the sentence upon conviction by a special or general court-martial.  The evidence of record also shows that the Applicant had a confrontation with civil authorities on 20040728 which resulted in the Applicant being subdued by pepper spray.  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 implies that his discharge is inequitable because he appealed his nonjudicial punishment (NJP) but that the appeal was either not reviewed prior to his discharge or that the appeal was denied.  Neither the evidence of record nor the documents submitted by the Applicant show that the Applicant’s NJP proceedings were appealed.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 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 post-service documentation for the Board to consider.  

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 02 until 25 April 2005, Article 1910-142 [formerly 3630605], SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

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 91, insubordinate conduct toward warrant, noncommissioned or petty officer.

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