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NAVY | DRB | 1999_Navy | ND99-00001
Original file (ND99-00001.rtf) Auto-classification: Denied


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

ex-EOCA, USN
Docket No. ND99-00001

Applicant’s Request
The application for discharge review, received 981002, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance hearing and elected not to be represented by counsel/representative.

 Decision

A personal appearance hearing was conducted in Washington D.C. on 990407. The applicant appeared before the NDRB without representation. By unanimous vote, the NDRB determined the discharge was proper and equitable. The discharge shall remain as issued: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues
Prior to the personal appearance discharge review, the applicant introduced no issues as block 8 on the DD Form 293 is blank.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Letter of reference from L__ J. B__, dated 950324.
Personal letter from applicant, dated 950322.
Copies of documents from service/medical records. (17 pages)
Letter of reference from T__ S. K__, not dated.
Copy of DD 214.
Copy of DD 215.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active:          None
         Inactive:        USNR (DEP)                890331 - 891210  COG

 Period of Service Under Review :
Date of Enlistment: 891211                        Date of Discharge: 920410

 Length of Service (years, months, days):

         Active:          02 04 00
         Inactive:        None

 Age at Entry: 18                                   Years Contracted: 4

Education Level: 12                                 AFQT: 49

 Highest Rate: EOCN

 Final Enlisted Performance Evaluation Averages (number of marks):

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

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, MUC, SSDR, SWASM (2), KLM

Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

910807:  NJP for violation of UCMJ, Article 92: dereliction in performance of duty.
Award: Forfeiture of $100 per month for 2 months, restriction for 30 days, reduction to E-1 (forfeiture and reduction suspended for 6 months). No indication of appeal in the record.
910822:  Punishment from NJP awarded 910807 vacated due to continued misconduct.
910822:  NJP for violations of UCMJ, Article 92: fail to obey a lawful order,
Article 134: breaking restriction.
Award: Forfeiture of $150 per month for 2 months, restriction and extra duty for 15 days, reduction to E-1 (forfeiture and reduction suspended for 6 months). No indication of appeal in the record.
910827:  Retention Warning from Naval Mobile Construction Battalion SEVENTY-FOUR: Advised of deficiency (Misconduct due to failure to obey lawful orders, dereliction of duty and breaking restriction as evidenced by captain’s masts held on 910807 and 910822.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

911024:  Medical record entry from Mental Health Clinic, USAF Medical Center, Keesler AFB: diagnosis: (1) adjustment disorder with mixed disturbance of emotions and conduct. (2) marital problems, chronic. It would be in the best interests of the Navy and patient if he were administratively separated.
911204:  Medical record entry from Mental Health Clinic, USAF Medical Center, Keesler AFB: diagnosis: situational distress (ongoing mild Adjustment Disorder).

911224:  Retention Warning from Naval Mobile Construction Battalion SEVENTY-FOUR: Advised of deficiency (personality disorder as evidenced by medical record entry dated 911024), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920112:  Civil conviction for shoplifting. Found guilty at Gulfport Municipal Court. Fined $547.
920115:  Naval Mobile Construction Battalion SEVENTY-FOUR notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by CO’s NJP’s held 7 and 22 August 1991 and Civil Conviction on 14 January 1992; and Convenience of the Government due to Personality Disorder as evidenced by Medical Consultation Sheet, Standard Form 513 dated 24 October 1991.
920115:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, 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 separation.
920115:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and convenience of the government due to personality disorder.

920402:  BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

950718:  Prior documentary review by NDRB. The Board found the discharge to be proper and equitable, no change warranted. Docket Number ND95-00931.

PART III – RATIONALE FOR DECISION AND PERTINENT
REGULATION/LAW

Discussion

The applicant was discharged on 920410 under other than honorable conditions for misconduct due to a pattern of misconduct (A). The Board presumed regularity in the conduct of governmental affairs (B). 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 presented his case before the NDRB without representation. Prior to convening of the Board, the applicant was advised that if he proceeded without representation he would still retain the right appear before the NDRB with representation. An application for a second personal appearance hearing must be submitted within 15 years of the date of his discharge. During the hearing the applicant acknowledged his right to be represented by counsel, and elected to proceed without representation.

The following issues were presented during the applicant and his wife’s testimony:

1. The applicant feels he was treated unfairly by his command and does not deserve a discharge under other than honorable conditions.

2. The applicant request his discharge be upgraded to honorable so that he may utilize the loan privileges offered by the Veteran’s Administration.

3. The applicant request his discharge be upgraded to honorable so that he might qualify to serve as a civilian police officer.

 The applicant provided no documentation to support his claim of unfair treatment. There is nothing in the record to support his allegations. The applicant was afforded the opportunity to exercise all of the rights of law, regulation, and custom to which he was entitled. His record is devoid of any indication that there existed an error of fact, law, procedure, or discretion at the time of his discharge. The applicant was properly processed and equitably separated under other than honorable conditions by reason of pattern of misconduct. Relief is not warranted based on the applicant’s contention of unfair treatment.

Concerning the applicant’s desire to qualify for home loan assistance, the Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

 The NDRB does not upgrade discharges as a means to enhance an applicant’s employability. There is no law or regulation which provides for upgrading a discharge solely for the purpose of permitting an applicant to obtain better employment. Relief will not be granted based on the applicant’s desire to become a police officer.

Upon review of the records the NDRB noted that the applicant was improperly processed for separation by reason of convenience of the government due to a personality disorder. The applicant was diagnosed with an Adjustment Disorder, not a Personality Disorder. As such, he did not meet the criteria for separation due to personality disorder. The applicant was properly processed for separation under other than honorable conditions by reason of misconduct due to a pattern of misconduct. BUPERS appropriately directed the discharge. The error made in processing the applicant for separation due to a personality disorder has no bearing on the discharge and does not provide a basis for relief.

 Prior to this personal appearance hearing, a documentary review (Docket Number ND95-00931) was conducted on 950718. The Decisional Document effecting the NDRB’s decision informed the applicant of the Board’s authority to upgrade a discharge based on post service clemency. The document described the types of contributions to society that might warrant an upgrade. The applicant chose not to employ that venue at his personal appearance hearing. Since the applicant is entitled to a second personal appearance hearing (with representation), the following is provided. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (D). Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, can be considered. Post-service looked upon favorably by this or any Board includes evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, certification of non-involvement with civil authorities and letters of character/recommendation. The applicant is reminded that he is eligible for a second personal appearance hearing with representation provided the application is received within 15 years from the date of discharge. Representation at a second personal appearance hearing is mandatory.

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 – A PATTERN OF MISCONDUCT.

B. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 obtain a copy of DoD Directive 1332.28 by writing to:
                  DA Military Review Boards Agency
                  Management Information and Support Directorate
                  Armed Forces Reading Room
                  Washington, D.C. 20310-1809

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:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  Building 36 Washington Navy Yard
                  901 M Street, SE
                  Washington, D.C. 20374-5023     


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