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NAVY | DRB | 2001_Navy | ND01-00135
Original file (ND01-00135.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND01-00135

Applicant’s Request
The application for discharge review, received 001113, 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 – Commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.
PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. Pls. Review on Any Available documents to my service Record For Consideration Thank you.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 1343
Copy of DD Form 215
Copy of DD Form 214 (Member 1)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     900904 - 900909  COG

 Period of Service Under Review :
Date of Enlistment: 900910               Date of Discharge: 921216

 Length of Service (years, months, days):

         Active: 02 03 07
         Inactive: None

 Age at Entry: 24                          Years Contracted: 6

 Education Level: 12                        AFQT: 25

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.60 (3)    Behavior: 2.60 (3)                OTA : 2.67

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SASM with Bronze Star, JMUA, SSDR

 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 :

910903:  NJP for violation of UCMJ, Article 128: Assault consummated by a battery, violation of UCMJ, Article 134 (2 specs): (1) Drunk and disorderly (2) Carrying a concealed weapon.
         Award: Forfeiture of $376.95 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
920207:  Command referral: Recommendation: Level II treatment if any repeat incidents would refer to psychiatrist.

920613:  Medical record: A: Situational stress/R/O psychoses. P: Refer to nearest psych for eval.

920615:  ER f/u with psychology eval. A: Situational anxiety reaction. P: 1. Advise applicant and escort to go to Fleet Liason officer in A.M. for medevac to Naples to see me psychiatrist. 2. Consult from corpsman aboard ship is in medical record.

920616:  Psychiatric evaluation: Impressions: Adjustment disorder with depressed mood. Recommendations: This patient is psychologically fit for full duty and is instructed to return to same.

920809:  Medical entry: A: Adjustment disorder/paranoia/r/o malingering. P: 1. Remove from watch standing. 2. LPO personally 3. Refer to psych upon return to port. 4. Advised applicant of his responsibility as to fit for full duty. 5. Discussed with chain of command. To ensure compliance with restrictions.

920815:  Psychiatry evaluation: A: Adjustment disorder with depressed mood/paranoia. P: Medevac - has contracted with me against self harm.

920826:  Applicant evacuated from USS CONOLLY for psychiatric referral on basis of "bizarre" behavior centering around his feeling that shipmates were molesting him during sleep. He also notes other stressors including recent death of his grandmother. He does not desire to return to CONOLLY. He denies homicidal/suicidal ideation. Review of medical records indicates request for final psychiatric evaluation and disposition with Axis I: adjustment disorder with repressed mood and R/O paranoid personality disorder. A: Resolving adjustment disorder/situational depression. R/O present personality disorder. P: Routine psychiatric referral 8Sep92.

920826:  Psychiatry evaluation: Axis I: (1) Deferred, (2) Alcohol abuse by history. Moderate psychosocial stressor - geographical separation from child and fiancée. Recommendation: 1 At this time there is insufficient data to establish the diagnosis, if any. Health records seem to support a possible psychotic process in the recent past, however on clinical interview applicant shows no evidence of psychotic symptoms. 2. Consultation to psychology for psychological testing. 3. Follow up appointment with doctor on 5Oct92, sooner if applicant is not going to go on leave. 4. D/W applicant and doctor.

920928:  Latest Evaluation: Based on clinical data including interview, observation and psychological testing, the patient is not currently suffering from a major psychiatric illness. No evidence of psychosis is noted. No evidence of paranoia is noted in person or on testing. Thus the diagnosis is: Axis I: Alcohol abuse by history, occupational problem, Axis II: None evident. Recommendation: Psychiatrically fit for duty.

921113:  NJP for violation of UCMJ, Article 115: Malingering between 5Jun92 and 4Nov92.
         Award: Forfeiture of 1/2 pay per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
921114:  Retention Warning: Advised of deficiency (CO's NJP of 03Sep91 - VUCMJ, Article 128; Assault consummated by a battery; VUCMJ, Article 134 (2 specs); Drunk and disorderly and carrying a concealed weapon. CO's NJP of 13Nov92 - VUCMJ, Article 115: Malingering.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
921116:  Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a serious offense. [Extracted from CO's message dated 23Nov92.]
921119:          Applicant advised of his rights and having elected not to consult with counsel, certified under UCMJ Article 27B, elected to waive all rights. [Extracted from CO's message dated 23Nov92.]
921123:  Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a serious offense. Commanding officer’s comments (verbatim): SNM has decided that he wants out of the Navy and has decided to work when he wants to. He has seen 5 different medical officers or clinical psychologist and he has been found fit for full duty. He has been an admin burden because of his so called psychiatric problems while deployed and since returning. I strongly recommend him for separation under other than honorable conditions.

921127:  BUPERS 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 921216 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 request’s the Board to review any available documents pertaining to his service record, for consideration of an upgrade. This is not a decisional issue and requires no further comment. However, the Board did review all available documents as requested by the applicant and determined the discharge was proper and equitable. Relief denied.

 The following is provided for the benefit of the applicant. 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 any of these documents. He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his 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.

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. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 128 (assault consummated by battery), Article 115 (malingering), 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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