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Docket No. ND06-00671

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

FOR OFFICIAL USE ONLY

ex-SR, USN
Docket No. ND06-00671

Applicant’s Request

The application for discharge review was received on 20060328.  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 20070301.  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 Under Other Than Honorable Conditions by reason of misconduct due to commission of a serious offense.

The NDRB did note administrative error(s) on the original DD Form 214.  Block 24, Character of Service, should read: “UNDER OTHER THAN HONORABLE CONDITIONS” and Block 29, Dates of Time Lost During This Period, should read: “TL: 91 SEP 04 TO 91 SEP 05.”  The Commander, Navy Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues:
 
Equity – Quality of service

Equity – Minor offense

Equity – Family situation

Documentation

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

Applicant’s DD Form 214  (Service 2) (2 copies)
Character Reference ltr from M_ D. M, Benton County Government, Maintenance 	Department, Supervisor (Undated)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	19890629 - 19900618	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  19900619		Date of Discharge:  19911120

Length of Service (years, months, days):

	Active:    01  05  01  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  18 

Years Contracted:  4 

Education Level:  12				AFQT:  65

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.7 (2) 	Behavior:  2.7 (2) 		OTA:  2.7

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal, Southwest Asia Service Medal, W/Star, Navy Unit Commendation Medal, Sea Service Deployment Ribbon

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - commission of a serious offense, authority:  MILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events: 

900620:	Retention Warning:  Advised of deficiency (defective enlistment and induction due to fraudulent entry into naval service as evidenced by your failure to disclose your preservice civil involvement/drug abuse.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910610:	NJP for violation of UCMJ, Article 86:  UA from 1800 910503 to 0730, 910504 (11 ½ hours).
Violation of UCMJ, Article 92: Failure to obey an order (fail to report to BMCS Vanetta).
Violation of UCMJ, Article 134:  False or unauthorized pass offenses.
	Award:  Forfeiture of $377.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

910611:	Medical Department, USS YELLOWSTONE (AD 41).  Psychiatric eval.  Referred by Deck Department for abnormal behavior.  
	Plan:  Personal behavior problem.  Will call Applicant back to repeat exam.

910614:	Retention Warning:  Advised of deficiency (Violation, Article 134:  False or unauthorized pass offenses; Violation, Article 92:  Failure to obey order or regulation; Violation, Article 86:  Unauthorized absence.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910618:	Medical Department, USS YELLOWSTONE (AD 41).  Follow up due to inappropriate behavior.  No suicidal or homicidal ideation.  Recommend consult for suitability of Naval service.

910904:	UA from USS YELLOWSTONE (AD 41) located at Norfolk, VA as of 0530, 910904.  Intentions unknown.

910905:	Surrendered on board USS YELLOWSTONE (AD 41).

910909:	UA from USS YELLOWSTONE (AD 41) located at Norfolk, VA as of 0630, 910909.

910909:	Surrendered on board USS YELLOWSTONE (AD 41) at 1445, 910909.  Absence not excused.  

911003:	NJP for violation of UCMJ, Article 86:  UA from 910904 to 910905.
	Violation of UCMJ, Article 92:  Failure to obey a lawful order.
	Award: Forfeiture of $377.00 pay per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

911007:	Naval Hospital Portsmouth VA, Psychiatry Clinic.  Applicant referred due to bizarre behavior, continues to act out despite warning to stop.  Applicant found to be licking floors, urinals, and masturbating in public.
	Diagnosis:  Antisocial Personality Disorder.  
	Recommendation:  Return to duty.  Fit for administrative action.  Processing for administrative discharge is strongly recommended  per NAVMILPERSMAN 3620225 on the basis of a personality disorder which interferes with the proper performance of duty. 

911010:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service under other than honorable conditions by reason misconduct due to commission of a serious offense and convenience of the government due to a personality disorder as evidenced by military psychiatrist diagnosis that he is a danger to himself and others, and that his disorder is of such severity as to render him incapable of serving adequately in the Naval service.

911010:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.  Applicant did not object to this separation.

911015:	Commanding Officer, USS YELLOWSTONE, recommended discharge by reason of misconduct due to commission of a serious offense and convenience of the government due to a personality disorder as evidenced by military psychiatrist diagnosis.  Commanding Officer’s comments:  “SR T_ (Applicant) has become an administrative burden.  His attitude and potential are to a point where his severance from the U. S. Navy is in the best interest of both the Navy and SR T_.  His misconduct is totally unacceptable behavior and unworthy of an honorable discharge strongly recommend separation from the U. S. Navy with a characterization of service as other than honorable.”

911022:	BUPERS, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19911120 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of uncharacterized 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 (C and D).  

Equity – Quality of service:  The Applicant contends that is discharge is improper because the misconduct occured after he served in Desert Storm.  

Equity – Minor incident:  The Applicant contends that his discharge should be upgraded be cause he never committed a criminal or violent act.

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.  An under other than honorable conditions 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 retention warnings and 2 nonjudicial punishment proceedings for violations of Articles 86 (2 specs), 92 (2 specs), and 134 of the UCMJ.   Violations of UCMJ Article 92 are considered serious offenses for which a punitive discharge is authorized if adjudged by 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.

Equity – Family problems:  The Applicant contends that he was experiencing severe personal problems due to illnesses in his immediate and extended family.

While the Applicant may feel that stress related to his family situation was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  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.  The NDRB has no authority to provided additional review of this case since Applicant’s discharge occurred more than 15 years ago.  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), effective 15 Aug 91 until 
04 Mar 93, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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).

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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