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NAVY | DRB | 2001_Navy | ND01-00132
Original file (ND01-00132.rtf) Auto-classification: Denied


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

ex-HN, USN
Docket No. ND01-00132

Applicant’s Request
The application for discharge review, received 001109, requested that the characterization of service on the discharge be changed to Honorable. The applicant requested a documentary record discharge review. The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010510. 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 of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

Applicant has provided a letter of explanation.

1. Tried to seek medical assistance for depression anxiety disorder See medical documentation

2. Tried to seek counseling for sexual abuse issue prior to Navy career. See documentation sought counseling through chaplain, etc.

3. Request upgrade to Honorable due to circumstances

4. See personal statement & all medical documentation



 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Letter of explanation
Forty-one pages from applicant's service records
Letter from Dominion Psychiatric Associates, PLLC dated January 6, 2000
Copy of DD Form 214 (4 copies)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     950113 - 951203  COG
                  USNR (DEP)      940513 - 940824  ELS

 Period of Service Under Review :
Date of Enlistment: 951204               Date of Discharge: 000128

 Length of Service (years, months, days):

         Active: 04 01 25
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4 (12 months extension)

 Education Level: 12                        AFQT: 51

 Highest Rate: HN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.00 (1)    Behavior: 1.00 (1)                OTA: 1.67        5.0 evals

 Military Decorations: None

 Unit/Campaign/Service Awards: GCM

Days of Unauthorized Absence: 59

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

 Chronological Listing of Significant Service Events :

960417:  Clinical psychologist: A: Distress appears to be due to immaturity and underdeveloped sense of discipline.

961121:  Applicant reports decreased concentration, anorexia, feeling depressed emotional .... with episodes of uncontrolled crying and laughing for 1 month. A: 1 PTSD, 2 R/O depression episode. Contracts for safety...agrees to contact medical if she feels more depressed or if she feels out of control. Consult to psych - discussed with doctor, appointment today at 1400....

UNDATED:         Retention Warning: Advised of deficiency (Failure to obey lawful order of a senior Petty Officer (UCMJ Article 92), absence from appointed place of duty (UCMJ Article 86.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

000103:  Medical Record: A: 1 Anxiety disorder NOS, 2 Borderline personality disorder.

000104:  Medical Record: A: 1 Anxiety disorder NOS, 2 Borderline personality disorder.

000105:  Medical Record: A: 1 Anxiety Disorder NOS, 2 Borderline personality disorder.

000106:  Medical Record: A: 1 Anxiety Disorder NOS not functionally incapacitations. 2. Borderline personality disorder.

000106:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0445, 1Nov99 to 2114, 30Dec99 (59 days/apprehended), violation of UCMJ, Article 87: Missing ship's movement on 1Nov99.
         Award: Forfeiture of $300 per month for 1 month, restriction for 30 days, reduction to HA. Reduction suspended for 3 months. No indication of appeal in the record.
000107:  Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a serious offense.
000112:          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.
000121:  Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a serious offense.

000127:  Commander, Carrier Group EIGHT directed the applicant's discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 000128 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).

Issue 1. The applicant states that she tried to seek medical assistance for depression, and anxiety disorder. A diagnosis of Anxiety disorder would not have invalidated the applicant’s discharge or the characterization. A discharge based on misconduct takes precedence over a medical discharge. The applicant was discharged for Commission of a serious offense, as a result of violation of UCMJ, Article 86 (unauthorized absence for 59 days/apprehended) and Article 87 (missing ship’s movement). The discharge was proper and equitable. Relief denied.

Issue 2. The applicant states, she tried to seek counseling for a sexual abuse issue prior to her Navy career. Unfortunately, the applicant’s pre-service issue does not mitigate her misconduct, and subsequent discharge from the Navy. The Board determined the discharge was proper and equitable. Relief denied.

Issue 3 and 4. The Board considered issues 3 and 4, and all associated documents. These issues do not provide sufficient justification to warrant an upgrade to the applicant’s discharge. Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the applicant’s enlistment. Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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. Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge. Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for clemency, based on post-service conduct. The applicant did not provide sufficient documentation to warrant an upgrade to the applicant’s discharge. She is reminded that she remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of her discharge. The applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Legal representation at a personal appearance hearing is highly recommended but not required. Relief denied.

 Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 97 until 29 March 2000, Article 1910-142 [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT- COMMISSION OF A SERIOUS OFFENSE .

B. In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 86 (for unauthorized absence for a period in excess of 30 days) and Article 87 (missing ship’s movement), 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 view DoD Directive 1332.28 and other Decisional Documents by going online at " afls14.jag.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:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023      


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