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NAVY | DRB | 2001_Navy | ND01-01163
Original file (ND01-01163.rtf) Auto-classification: Denied


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


ex-ADAR, USN
Docket No. ND01-01163

Applicant’s Request
The application for discharge review, received 010910, requested that the characterization of service on the discharge be changed to general/under honorable conditions. 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 020517. 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/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues

 1. Psychological evaluation by Navy Dr. recommending transfer to locked facility.
2. USC LA County Emergency Adult Psych Unit record (not included: He was sent to a locked facility in El Monte and released a few wks latter by a Judge)
3. USC -LA County Adult Psych Record (partial) shows admission, diagnosis, and refusal to Long Term Locked facility. "LA CASA", in Long Beach, where he presently resides. I spared you and myself, sending partial records. But I have them all. (Applicant's) hope is that he can rejoin the Navy. He loves his Navy experience.
4. Dear Sir: As (applicant's) father & conservator, im not as enamored by the Navy as he is. I'd like to see him get his lost time back. And his stripe, and his VA benefits.
 I can't believe you bust the mentally ill. Thank you for not throwing him over the fan tail.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Copy of Conservatorship of applicant dated April 9, 2001
 Six pages from applicant's service medical record
 Twenty pages from applicant's civilian medical record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
          Inactive: USNR (DEP)     980514 - 980712  COG
Period of Service Under Review :
Date of Enlistment: 980713               Date of Discharge: 000404

 Length of Service (years, months, days):
         Active: 01 08 22
          Inactive: None
Age at Entry: 18                          Years Contracted: 4

 Education Level: 11                        AFQT: 64
Highest Rate: ADAA

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 3.00 (1)    Behavior: 2.00 (1)                OTA: 2.67

 Military Decorations: None
Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 2
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).
Chronological Listing of Significant Service Events :

990529:  Applicant to unauthorized absence 0445, 29May99.
990531:  Applicant from unauthorized absence 0630, 31May99 (2 days/surrendered).
000126:  NJP for violation of UCMJ, Article 89 (2 specs): Disrespect towards a superior commissioned officer, violation of UCMJ, Article 91 (2 specs): Disrespect towards a superior non-commissioned officer.
         Award: Forfeiture of $502 per month for 2 months, restriction and extra duty for 45 days, reduction to ADAR. Restriction and extra duty for 5 days suspended for 6 months. No indication of appeal in the record.
000126:  Retention Warning: Advised of deficiency (Commanding Officer's nonjudicial on 26 January 200 for violation of the UCMJ, Article 89 (2 specs) Disrespect towards a superior commissioned officer (2 specs), Article 92, Disrespect towards a superior non-commissioned officer (2 specs).), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

000222:  NJP for violation of UCMJ, Article 86 (16 specs): Unauthorized absence from restricted person's muster, violation of UCMJ, Article 128: Assault. Dates of offenses 3-20Feb00.
         Award: Bread and water for 3 days. No indication of appeal in the record.
000223:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by your two nonjudicial punishments within your current enlistment and misconduct due to commission of a serious offense as evidenced by your nonjudicial punishment dated 26 Jan 00 for disrespect toward a superior commissioned officer and disrespect toward a superior non-commission officer.
000223:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
000227:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.
000302:  Clinical Psychologist: Clinical Impression: Axis I: Adjustment disorder with disturbance of conduct, acute. Axis II: Paranoid personality disorder. Recommendation: 1. ...patient be safely transported to a locked psychiatric unit as soon as possible. 2. ...patient should be observed and evaluated in the psychiatric setting to rule out the possibility of schizophreniform disorder. [Extracted from medical pages submitted by applicant]
000306:  COMCARGRU SEVEN directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 000404 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).
Issues 1-3. The Board’s charter limits its review to a determination on the propriety and equity of the discharge. In the applicant’s case the Board could discern no impropriety or inequity and therefore considered the applicant’s discharge was proper and equitable.
 Separation for misconduct takes precedence over separation for medical reasons. The applicant was diagnosed with a personality disorder after processing for involuntary separation had begun. The Board does not consider the circumstances surrounding the applicant’s stated condition as a mitigating factor to be of sufficient nature to warrant an upgrade to his characterization of service. The Board found no impropriety or inequity in the fact that the applicant was separated under other than honorable conditions for misconduct. Relief denied.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.

Issue 4. The Board found that the applicant’s age, education level, and test scores qualified him for enlistment. While the applicant’s father may feel that his medical condition was a factor that contributed to the applicant’s actions, the record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions that led to his two non-judicial punishments. The applicant’s father is recommended to seek assistance from the Veterans Administration if he has not already done so. Relief denied.

The Veterans Administration determines eligibility for post-service benefits, not the NDRB. 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 applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. 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 relief, based on post-service conduct. The applicant did not provide sufficient documentation to warrant an upgrade to his discharge. 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. Relief denied.


Pertinent Regulation/Law (at time of discharge)
A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 1997 until Present, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - 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 view DoD Directive 1332.28 and other Decisional Documents by going online at “ afls10.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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