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NAVY | DRB | 1999_Navy | ND99-00067
Original file (ND99-00067.rtf) Auto-classification: Denied


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

ex-AR, USN
Docket No. ND99-00067

Applicant’s Request
The application for discharge review, received 981016, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to Medical disability The applicant requested a documentary record discharge review. The applicant listed the American Legion as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 990920. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service. The Board’s vote was unanimous that the character and the reason for the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. (EQUITY ISSUE) This former opines that medical, psychological and personal problems impaired her ability to serve and sufficiently extenuates her misconduct of record to warrant upgrade of character of service to honorable.

2. (EQUITY ISSUE) This former members further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Statement in support of claim dated September 25, 1998
Copy of DD Form 214 (4 copies)
Four pages from applicant's medical record
Statement in support of claim dated February 1, 1999

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     950111 - 950221  COG

 Period of Service Under Review :
Date of Enlistment: 950222               Date of Discharge: 960715

 Length of Service (years, months, days):

         Active: 01 04 24
         Inactive: None

 Age at Entry: 21                          Years Contracted: 8

 Education Level: 12                        AFQT: 36

 Highest Rate: AA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA                  Behavior: NMA             OTA: NMA

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT – Commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

951204:  NJP for violation of UCMJ, Article 92: Violation of written order.
         Award: Restriction and extra duty for 30 days. No indication of appeal in the record.
951204:  Retention Warning: Advised of deficiency (Disregard of lawful orders.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
960503:  Psychology Department: Axis I: (1) Alcohol abuse (by history) (in remission), (2) Dysthymia (EPTE) (Secondary to Axis II), (3) Occupational Problem (Secondary to Axis II) Axis II: Personality disorder NOS with passive aggressive, antisocial and narcissistic traits (primary) (severe) (EPTE). Axis III: No significant, interfering, conditions noted. Axis IV: Severity of psychosocial stressors = 4, Severe (poor adaptation to military life). Axis V: GAF Current = 50, serious symptoms, past year = 50, serious symptoms. The patient is fully responsible for herself and her actions.

960516:  NJP for violation of UCMJ, Article 91: Willful disobedience of petty officer, violation of UCMJ Article 92: Dereliction in the performance of duties.
         Award: Forfeiture of $437 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
960619:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and pattern of misconduct and personality disorder as evidenced by your service record and reference (c).
960619:          Applicant advised of her 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.
960620:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense, misconduct due to a pattern of misconduct and, personality disorder as diagnosed by competent medical authority.

960628:  CNET directed discharge with an other than honorable discharge by reason of misconduct due to commission of a serious offense, misconduct due to pattern of misconduct and personality disorder.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 960715 under other than honorable conditions for misconduct due to commission of a serious offense (A and B). The Board presumed regularity in the conduct of governmental affairs (C). 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 (D and E).

In the applicant’s issue 1, the Board found that a medical diagnosis, on active duty or during post-service, and whether proper or improper, is not an issue upon which this Board can grant relief. When reviewing a discharge, the Board does consider the extent to which a medical problem, diagnosed or undiagnosed while on active duty, might effect an applicant’s performance and ability to conform to the military’s standards of conduct and discipline. The applicant was evaluated by a qualified medical officer and it was determined that she was “fully responsible for herself and her actions.” The Board does not consider the circumstances surrounding the applicant’s diagnosis or any medical treatment given to the applicant to be of sufficient nature to exculpate the applicant from her misconduct of record. In fact, the Board has seen no connection between the applicant’s medical condition and her misconduct. Relief is not warranted.

In response to issue 2, there is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the Service. However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D). Those factors include, but are not limited to, the following: evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of her not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct. At this time, the applicant has not provided any documentation of good character and conduct. Therefore no relief will be granted. The applicant is encouraged to continue with his pursuits and is reminded that she is eligible for a personal appearance hearing provided the application is received within 15-years from the date of discharge.

In addition, the applicant requested that the reason for the discharge be changed to medical disability. T he NDRB, under its responsibility to examine the propriety and equity of an applicant's discharge, will change the reason for discharge if such a change is warranted. The summary of service clearly documents that misconduct was the reason the applicant was discharged. No other Narrative Reason for Separation could more clearly describe why the applicant was discharged. To change the Narrative Reason Separation would be inappropriate.

Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.
B. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article [e.g., 91, willfully disobeying a petty officer] if adjudged at a Special or General Court-Martial.
C. 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.

D. 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.

E. 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
                  Washington Navy Yard
                  720 Kennon Street SE Rm 309
                  Washington, D.C. 20374-5023     


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