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Docket No. ND06-00955

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

FOR OFFICIAL USE ONLY

ex-HTFA, USN
Docket No. ND06-00955

Applicant’s Request

The application for discharge review was received on 20060712.  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 20070517.  Impropriety in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was 4 to 1 that the characterization of the discharge shall change and 4 to 1 that the narrative reason for discharge shall not change.  On its own motion, the Board reconvened on 20070620 to assess additional information contained in the Applicant’s record that was not presented before the Board during the initial review.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board determined that the additional information did not constitute grounds for reconsideration of its initial determination.  The discharge shall change to:  General (under honorable conditions) by reason of misconduct (commission of a serious offense).

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

Propriety:  Improper Administrative discharge process

Equity: Undiagnosed Medical Condition.

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) (2)
Applicant’s claim for disability insurance benefits, dated January 27, 2006
Twenty-five pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19880607 - 19890103	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19890104		Date of Discharge:  19911122

Length of Service (years, months, days):

	Active:    02  10  19
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  19

Years Contracted:  4

Education Level:  12				AFQT:  45/54

Highest Rate:  HTFA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.6 (2)			Behavior:  3.8 (2)		OTA:  3.60

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal, Armed Forces Expeditionary Medal, Southwest Asia Service Medal with Two Bronze Stars, 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: 

910802:	The Applicant punched a bulkhead in frustration over fight with girlfriend.  He was treated and released to full duty.  

910821:	The Applicant made a suicidal gesture 910819 and was evaluated by competent medical authority. Medical assessment recommended return to full duty. The applicant is responsible for his behavior.

910828:	Applicant had further follow-up for the suicide gesture.  Applicant says he withdraws when angry and likes to argue with girlfriend.  
	Axis I: Adjustment disorder and mixed emotional features.
	Axis II:  No diagnosis - Dependent traits.
	Axis III:  Fractured right hand

910905:	Applicant seen by competent medical authority after self altering his cast on right hand.  Applicant was directed to get cast replaced and never received a new cast as directed.  Applicant was observed not wearing cast as directed.	

910925:	NJP for violation of UCMJ, Article 92 (2 specs).
	Specification 1: On or about 2200, disobey an order.
	Specification 2: Disobey a lawful order on 2245, 910906.
Violation of UCMJ, Article 108: On or about 910828 caused to be suffered military property, two pages from his medical records.
	Award:  Forfeiture of $376.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  Forfeiture and reduction suspended fro 6 months.  No indication of appeal in the record.

911003:	Retention Warning:  Advised of deficiency (Misconduct due to Violation of the UCMJ, Article 92: Disobeying a lawful order.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

911016:	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 commission of a serious offense.

911016:	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.

911025:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.

911114:	BUPERS directed the Applicant’s discharge under other than honorable and that the discharge is held in abeyance by Commanding Officer pending further observation of members conduct.

911114:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.

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 19911122 by reason of misconduct due to commission of a serious offense (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 improper due to an error of discretion in the discharge processing (C and D).  

During a documentary review the Board discovered the Applicant was given a retention warning on 19911003 for 2 violations of Article 92 (Failure to obey a lawful order) after receiving nonjudicial punishment for these and another offense.  The retention warning, signed “by direction” of the Commanding Officer, specifically stated the Applicant was being retained in the naval service and warned him that further misconduct would subject him to possible administrative discharge proceedings.  However, the subsequent recommendation for discharge on 911025 did not reference the retention warning, nor identify in what manner, if any, the Applicant continued to engage in misconduct in violation of the warning.  The Board could not identify further misconduct in the record, nor could it determine if the creation of the retention warning was an administrative error.  While regulations at the time did not explicitly preclude administrative separation processing for commission of a serious offense because of the retention warning, the Board determined that the “by direction” warning should be ascribed to the Commanding Officer and that the Separation Authority was not fully informed of all relevant information regarding the Applicant’s case.  As a result, and in light of the Separation Authority’s initial action on the case, the Board had substantial doubt as to whether the discharge would have occurred or remained the same had the Separation Authority been fully informed.  Since the Applicant did commit a serious offense, the Board determined that no change to the reason for discharge was warranted; however, the Board voted to upgrade the Applicant’s discharge characterization to general (under honorable conditions).  The Board specifically determined that, in light of the Applicant’s documented misconduct and overall service record, an honorable characterization of service was not warranted.  Relief granted in part on this issue.
 
Equity: Undiagnosed Medical Condition.  The Applicant claims his undiagnosed heart condition contributed to his other than honorable discharge.  While he may feel that his undiagnosed medical condition was the underlying cause of his misconduct, the Board discerned no connection between this alleged, and uncorroborated condition, and the Applicant’s misconduct.  Relief is denied on this issue.

The following is provided for the edification of the Applicant.  The NDRB has no authority to provide additional review of this case since the 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, Articles 92 (Failing to obey order or regulation) and 108, (Military property of the United States—sale, loss, damage, destruction, or wrongful disposition).

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