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Docket No. ND06-00892

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

FOR OFFICIAL USE ONLY

ex-MMFN, USN
Docket No. ND06-00892

Applicant’s Request

The application for discharge review was received on 20060622.  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 20070419.  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 a pattern of misconduct.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

Equity – Quality of service

Equity - Psychiatric problems

Documentation

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

Applicant’s DD Form 214 (Member 4)
Applicant’s DD Form 214 (Member 1)
Letter from Applicant, dtd May 11, 2006 (2 pgs)
Medical Record (6 pgs)
Letter from S_ S_, Ph.D. Staff Psychologist to Social Security Administration, dtd May 	10, 2005 (4 pgs)
Letter from Applicant, dtd July 20, 2006
Three pages from the Applicant’s Service Record 

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	19890526 - 19890612	COG
	Active:   USN	19890613 - 19930611	HON
	Inactive:  USNR-R	19930612 - 19970525	HON
	Inactive:  USNR-R	20010928 – 20011009	COG
	
Period of Service Under Review:

Date of Enlistment:  20011010		Date of Discharge:  20040221

Length of Service (years, months, days):

	Active:    02  04  11 
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  32

Years Contracted:  4 

Education Level:  12				AFQT:  26

Highest Rate:  MM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.5 (2)		Behavior:  2.5 (2)			OTA:  2.58

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Navy Good Conduct Award, Meritorious Unit Commendation, Navy “E” Ribbon, National Defense Service Medal, Armed Fores Expeditionary Medal, Sea Service Deployment Ribbon (2).

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: 

020215:	NJP for violation of UCMJ, Article 128: Assault on MS3 W_. On or about 020205, unlawfully grab, MS3 L_ W_, U.S. Navy, by the arms with his hands.
	Award:  Restriction and extra duty for 30 days, reduction to E-3 (suspended for 6 months).  No indication of appeal in the record.

020215:	Retention Warning:  Advised of deficiency (Article 128-Assault.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

031009:	NJP for violation of UCMJ, Article 91: Insubordinate conduct toward a Chief Petty Officer.  On or about 030925, was disrespectful in language and deportment toward MMC D_.
	Award:  Forfeiture of $771.00 pay per month for 1 month, restriction and extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.

040112:	Medical evaluation by SARD, Naval Medical Center San Diego.
	Diagnosis:
AXIS I: Alcohol Dependence, with Physiological Dependence, 303.90 R/O Adjustment Disorder with Anxiety
	AXIS II: No Diagnosis V71.09
	AXIS III: None reported
	AXIS IV: Occupational Problems
	AXIS V: GAF: 71-80
	Recommendations:	
	Residential treatment. 

040129:	Medical evaluation by Branch Medical Clinic, NAVSTA.
	Chief Complaint: “I was shocked” 
	Assessment:
AXIS I: 305.00 Alcohol Abuse R/O Malingering, R/O Anxiety Disorder NOS.
	AXIS II: Antisocial Personality Disorder, Provisional.
	AXIS III: Please see Medical Record.
	AXIS IV: Work stress
	AXIS V: (current):60
	AXIS V: (highest):65  
	Pain:  Chest pain 10 on 10 scale  “Today is like the worst pain in my life.”  He noted that his pain started from a cough earlier today and went “strait to my heart!”
	Plan/Recommendation:
Fit for full duty at this time without restriction.  Suitability for continued service is questionable. 
	
040212:	NJP for violation of UCMJ, Article 89: Disrespect toward a superior officer.  At sea on or about 1300, 040123, was disrespectful in language and deportment toward Commander H_.
Violation of UCMJ, Article 91: Disrespect toward a Master Chief Petty Officer.  On or about 1800, 040122, was disrespectful in deportment toward Engineman Master Chief J_ S_.
Violation of UCMJ, Article 92: Dereliction in the performance of duty.  On or about 040122, derelict in the performance of those duties.
Violation of UCMJ, Article 111: Drunken operation of a vehicle. On or about 0226, 031226 physically control a vehicle, to wit: a passenger car, while under the influence of alcohol. 
	Award:  Restriction and extra duty for 30 days.  No indication of appeal in the record.

040212:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

040212:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to submit statements to the Administrative Board or the Separation Authority in Lieu of a board and the right to obtain copies of the documents used to support the basis for the separation.

040212:	Applicant examined and found to be physically qualified for separation.  

040218:	Commanding Officer, USS BELLEAU WOOD (LHA 3), recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

040220:	GCMCA, COMPHIBGRU THREE, directed the Applicant's discharge under other than honorable conditions by reason of pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040221 by reason of misconduct due to a pattern of misconduct (A and B) 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 (C and D).  The Board presumed regularity in the conduct of governmental affairs (E).

Equity – Quality of service:  The Applicant contends that this discharge should be upgraded because he has Honorable discharges for his service from 6/89 to 6/93.

While the Board acknowledges the Applicant’s previous honorable discharges, the period of service under review is the period of service wherein the Applicant committed misconduct and was discharged.  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 a retention warning and 3 nonjudicial punishment proceedings for violations of Articles 89, 91, 92, 111, and 128 of the UCMJ.  Violations of all of these UCMJ Articles are considered serious offenses for which a punitive discharge is authorized if adjudged by special or general courts 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 – Psychiatric problems:  The Applicant contends that his discharge should be upgraded because he developed a psychiatric disorder while on active duty which interfered with his ability to serve.

While he may feel that a psychiatric condition was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. On 20040112, the Applicant was examined by a competent medical authority and found to be alcohol dependent with occupational problems and referred to residential treatment. A subsequent medical examination on 20040129 determined that the Applicant had abused alcohol but that he was fit for duty without restriction.  The competent medical authority did include the following statement: “suitability for continued service is questionable.”  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 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 additional evidence related to this 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 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, Articles 89 ( Disrespect toward superior commissioned officer), 91 (Insubordinate conduct toward a Chief Petty Officer), 92 (Failure to obey order, regulation), 111 (Drunken driving) and 128 (Assault, consummated by battery).  

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 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