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Docket No. ND06-00283

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

FOR OFFICIAL USE ONLY

 ex-SN, USN
Docket No. ND06-00283

Applicant’s Request

The application for discharge review was received on 20051129.  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 designated Puerto Rico Public Advocate VA Affairs as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20061019.  After a thorough review of the available 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:

“Incidents/Reasons for discharge were incidents for which I had “Payed for”, and remained clean there after.”

The Applicant’s representative submitted no issues for consideration.

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214 (Service 2)
VA Form 21-22, Department of Veterans Affairs, Appointment of Veterans Service Organization as Claimant’s Representative, dtd November 18, 2005
Eight pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20021025 - 20030910	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20030911		Date of Discharge:  20041028

Length of Service (years, months, days):

	Active:    01  01  18
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  18

Years Contracted:  4 (24-month extension)

Education Level:  12				AFQT:  88

Highest Rate:  ETSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NA*				Behavior:  NA*		OTA:  NA*

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

* Not Available

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: 

040407:	Psychiatric evaluation at Mental Health Clinic, Naval Hospital, Great Lakes, Illinois by P_ N_, MD, Psychiatric Resident:  The patient is a 19 year old, single, Puerto Rican male, E2, USN with seven months of continuous active duty, assigned to ATD School, who was referred to Mental Health Clinic by his counselor at Building lB after voicing homicidal thoughts.
	Chief Compliant: “I went to talk to the counselor, I started talking to them and they referred me here.”
	History of present illness: This is the first psychiatric visit for this patient who reported being in his usual state of mental health until one month ago when he started feeling angry.  The patient reported that for one month he has been feeling very angry everyday due to a lot of people insulting him and annoying him.  He reports getting so angry that he goes smashing and kicking chairs, and hitting walls.  He reports that when he smash the chairs, he imagined the chair being that person that he wants to smash.  He also reports that he sometimes imagine his hand having claws and stabbing someone to death.  Also he reports when he gets angry, he feels sometimes like punching someone to the face, hitting so hard, until hearing the noise of someone’s bone cracking and his hand stained with red blood.  He also reports that at times he feels like grabbing someone around the neck and smashing him into the wall.  However he has never threatened anyone or verbalized such ideas to anyone.  When asked if he feels homicidal lately, he reported that last night when somebody pissed him off saying to him “bitch”, he felt like hitting that person with the broomstick that he was using at that moment.  When asked what stopped him from doing that, he reports his military code and fear of punishment.  He denies any homicidal ideations at present.  The patient denied any auditory or visual hallucinations, denied delusions, ideas of reference, or any other psychotic symptoms.  However the patient does report that this last month, he has been feeling sad, down in the dumps.  He has been unmotivated with no interest for pleasure.  He reports sleeping a lot and if he did not have to wake up in the morning, he would sleep until noon or sometimes afternoon.  He reports increased appetite, gaining ten pounds since February.  He reports low energy, poor concentration, feeling irritable and restless.  He states that at times he has been feeling worthless and he is a failure with sense of guilt.  He denies suicidal ideation at the present but does report that a month ago, he felt like not living anymore.  He did not have any specific plans or intent.  Although he had thoughts of suicide, he thought of his family that still loves him, hence he did not want hurt his family.  The patient denied any symptoms of anxiety, post traumatic stress disorder, generalized anxiety disorder or obsessive-compulsive disorder.  The patient denies any current use of drugs or alcohol.  He denies symptoms of mania or hypomania.
	Past psychiatric history: The patient reports no prior psychiatric hospitalization and has no history of prior suicidal attempts or gestures.  He does reports that he has never seen a psychiatrist or any prescribed any psychiatric medications.  He does report though at age 6 years old, he was seen by a psychologist due to being under stress when lots of children were insulting him and some what abusing him.  He denied any history of ADHD.  He never met criteria for mania, hypomania, obsessive-compulsive disorder, post traumatic stress disorder, generalized anxiety disorder or psychosis.  The patient endorsed a long history of intense anger with poor anger control, reacting mostly by isolating himself in a room and smashing chairs and hitting walls.  He reported he has a poor self image, at times staring at the mirror for one hour, looking at his ugly and old face and wondering if he will ever have a girlfriend.  He reports a chronic emptiness with long history of mood changing frequently during the day.  He reports intense interpersonal relationships with friends.  He also reports that at times he is impulsive reporting going shopping and buying unnecessary stuff for no reason.  He denies any self mutilatory behavior or suicidal gestures.  The patient does report at times he has been disrespectful and lacked empathy to people in regards to female peers in high school.  He denies any history of cruelty to animal, destruction of property or other [unreadable] conduct behavior.
	Impression: The patient is a 19 year old, single, Puerto Rican male with unknown biological predisposition to psychopathology who now presents with subacute symptoms of depression to include a sad and depressed mood, anhedonia, increased appetite, increased sleep, poor concentration, and poor energy.  Psychologically, the patient is demonstrating irritability, acting out behavior, feeling of guilt in regards with him being a failure, passive suicidal and recent homicidal ideations.  He seems to have a history of poor personality functioning to include intense anger and poor anger control, intense interpersonal relationships, chronic emptiness, affect instability, poor self image and impulsivity.  All of the above are occurring in the context of current psychosocial stressors to include a problem with social environment and occupational problems.
	Diagnosis: AXIS I: Depressive disorder, not otherwise specified rule out major depressive disorder
	AXIS II: Borderline personality disorder
	AXIS III: None
	AXIS IV: Psychosocial stressor are moderate, problem with social environment and occupational problem
	AXIS V: Global assessment of functioning: 65
	PLAN:
	1.  Since the patient does not have any suicidal or homicidal ideas at the present and has no intent or plan to hit anyone, we will return the patient back to active duty to his school command.
	2.  Due to the patient’s depressive symptoms, the need for psychotropic medication was assessed during the interview.  The risks, benefits and alternative treatments were discussed with the patient regarding initiating treatment with anti-depressants.  He gave a verbal inform consent to begin treatment with Zoloft 50 mg every morning.  A 30 day supply was given with one refill.
	3. The patient was referred to anger management class at Mental Health Clinic every Wednesday morning.
	4. The patient was given an educational/information pamphlet for depression and borderline personality disorder.
	5. The patient was informed of emergency procedures in case of symptom recurrence, and he gave an understanding of the same.
	6. The case was discussed with Doctor K_.
	7. Point of contact for this evaluation and recommendation is Doctor N_ at (telephone number deleted).

040609:	NJP for violation of UCMJ, Article 92: Fail to obey.
	Specification: In that Seaman Apprentice N_ V_(Applicant), U. S. Navy, Training Support Center, Great Lakes, Illinois , on active duty, did, on or about 27 May 2004, fail to obey a lawful order issued by Commander Naval Education and Training Command, to wit: CNETINST 1540.20, dated 07 June 1999, by failing four room inspections.
Violation of UCMJ, Article 128: Assault.
	Specification: In that Seaman Apprentice N_ A. V_, U. S. Navy, Training Support Center, Great Lakes, Illinois, on active duty, did, on or about 27 May 2004, commit an assault upon SA C_, USN, by pouring a hot cup of coffee down the back of his shirts.
	Award:  Restriction and extra duty for 14 days.  No indication of appeal in the record.

040609:	Retention Warning:  Advised of deficiency (Violation UCMJ Article(s) 92, Fail to obey; 128, Assault.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

040618:	NJP for violation of UCMJ, Article 92:  Fail to obey.
Specification: In that Seaman Apprentice N_ A. V_(Applicant), U. S. Navy, Training Support Center, Great Lakes, Illinois, on active duty, did, on or about 08 June 2004, fail to obey a lawful order issued by Chief of Naval Education and Training Command, to wit: CNETINST 1540.20, dated 07 June 1999, by not reporting in to ETC H_.
Violation of UCMJ, Article 108:  Destruction of government property.
Specification: In that Seaman Apprentice N_ A. V_(Applicant), U. S. Navy, Service School Command, Great Lakes, Illinois, on active duty, did, at Naval Training Center, Great Lakes, Illinois, on 08 June 2004, wrongfully breaking the vanity door, of some value, military property of the U. S. Government.
	Award:  Forfeiture of $597.00 per month for 1 month, restriction and extra duty for 30 days, reduction to E-1.  Reduction suspended for 6 months.  No indication of appeal in the record.

040618:	Psychiatric evaluation at Naval Hospital, Great Lakes, Illinois, by P. K_, MD:  Attention is directed to a copy of Doctor N_ psychiatric examination dated 7 April 2004 at which time he was diagnosed with depressive disorder, not otherwise specified, and borderline personality disorder.
	The patient has also seen Doctor M_.  The patient is in anger management.
	The patient reported that he wanted to see another psychiatrist.  He stated he did not like the previous psychiatrist’s “approach.” The patient reported that he took the Zoloft prescribed and indicated that it made him angry, irritable, and paranoid.  The patient does not wish to take medication to help to control his anger, but wants to learn other ways of controlling anger.
	The patient gave examples of anger he has manifested recently which has resulted in the patient being on restriction.
	The patient described a childhood history of having been emotionally and  physically abused by his peers.  The patient was unable to defend himself at that time.  He recognizes that his anger in the present is partially fueled by anger he has relating to the children who abused him when the patient was a child.  He has not had an opportunity to talk out feelings related to his past history of physical and emotional abuse.  Those feelings of rage appear to be expelled when the patient is shoved or made fun of in the present.
	During the interview, we talked about breathing techniques and the concept of talk therapy wherein he would be able to talk out his feelings related to his childhood abuse, resolve them, and learn to evaluate the consequences of his impulsive actions in the present.  He stated that he will become so angry that he cannot forgive an individual even though the individual apologies to him for having done something inappropriate to the patient.  The patient stated he recognizes that he does not seem to have the intermediate step of considering the consequences of his anger and impulsivity.  He appeared in his desire to learn how to gain better control.
	The mental status examination revealed a pleasant, cooperative, well- groomed male, who is cognitively intact, coherent, and mildly apprehensive.  He had no suicidal ideation, intent, or self-harm behavior, nor homicidal ideation, intent, or behavior.  He was not psychotic.  The pain was 0/10.  Risk of harm to himself and others was low at this time.
	Impression: 
AXIS I: Post-traumatic stress disorder (provisional)
	AXIS II: None identified at this time
	AXIS III: None
	AXIS IV: Stressors relate to problems with anger control
	AXIS V: Global assessment of functioning is 65
	The patient was referred to one of our staff psychologist to receive counseling to help the patient deal with anger that belongs in the past which he needs to resolve and to deal with frustration in the present.  The patient agreed to follow-up with a psychologist.  No psychotropic medications were indicated or prescribed.  The patient was told he could call me if he has any questions or further problems.

040917:	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 serious offense, misconduct - pattern of misconduct and convenience of the government - personality disorder.

040917:	Applicant advised of rights and having consulted with counsel, elected to  obtain copies of the documents used to support the basis for the separation and to submit a statement.  Applicant’s statement not found in record.

040921:	Separation physical at Physical Examinations Department, Fisher Branch Medical Clinic, Naval Hospital Great Lakes, Illinois, by Dr. G_, MD.  Applicant plans to appeal recommendation for adsep for psychiatric issues - denies ongoing health issues.  Applicant found medically qualified for separation.

041008:	Commanding Officer, Training Support Center, Great Lakes, Illinois, directed Officer in Charge, Personnel Support Detachment, Great Lakes, Illinois, to discharge Applicant with a general (under honorable conditions) character of service by reason of misconduct due to commission of a serious offense.  Commanding Officer’s comments:  “SR V_(Applicant) continued misconduct clearly undermines good order and discipline and indicates that he is unwilling to conform to the rules and regulations of the Naval service.  Based on review of all available information in this case, I find that SR V_ has no potential for further Naval service and recommend separating him with a discharge characterized as General (Under Honorable Conditions).”

Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20041028 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 Board presumed regularity in the conduct of governmental affairs (E).

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 a retention warning and two nonjudicial punishment proceedings for violations of Articles 92, 108 and 128 of the of the UCMJ.  The Applicant’s violations of Articles 92, 108 and 128 are considered serious offenses for which a punitive discharge is authorized if adjudged as part of the sentence upon conviction at a special or general court-martial.  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 was improper because it was based on incidents which had already been adjudicated.  The Applicant was subject to nonjudicial punishment proceedings (NJP) and issued a retention warning on 20040609.  On 20040618, the Applicant was again subject to nonjudicial punishment proceedings.  The Board could find no impropriety or inequity in the Applicant’s discharge.  There is no law or regulation which stipulates that a member’s misconduct adjudicated at NJP or courts-martial can not be used to form a basis for the member’s discharge.  In fact, the Applicant’s retention warning issued on 2040609 specifically indicated that while the Applicant was being retained despite his infractions of the UCMJ, future misconduct could result in discharge.  Additionally, for the edification of the Applicant,   Administrative discharges are not considered punitive in nature.  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.  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 92, failure to obey order/regulation, Article 108, willfully damage or destroy government property or Article 128, assault.  

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.

E.  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