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NAVY | DRB | 2002_Navy | ND02-00288
Original file (ND02-00288.rtf) Auto-classification: Denied


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

ex-SN, USN
Docket No. ND02-00288

Applicant’s Request
The application for discharge review, received 020123, 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 020815. 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, as submitted

 1. My discharge was inequitable because my conduct was a direct result of my deteriorating health condition that was worsened by the ineffective mental health and other medical aide necessary to help my suffering, that inevitably manifested itself after numerous family problems and harsh military punishment, with high blood pressure, chest pains, major depression, and constant anxiety. My condition worsened and I went UA to help my family with my younger brother's severe drug addiction that resulted in him attempting to take his life. At the same time, my older brother's HIV worsened and resulted in him being diagnosed with AIDS. The only response from my command at the Meridian Naval Air Station was that "Since I am not a doctor or a drug counselor, I would be useless." However, with my unauthorized absences, I was able to track down my younger brother (who was carrying a stolen gun) who was going to use the gun to end his life and admit him into a rehabilitation program. Also, I was able to see my older brother before his condition worsened. Over the time I spent at Meridian Naval Air Station, I had seen five doctors, two psychiatrists, one family counselor, one pastor, one civilian psychiatric ward for five days, and every enlisted and commissioned personnel in my chain of command. All of these were seen before any of my UA's, except the mental ward.

2. My discharge is improper because none of my mitigating circumstances were taken into account before or after any of my questionable conduct. One such mitigating factor was my deteriorating physical state as shown in Document 1. Second, was my mental condition due to the stress of my family and career compounded by the misplaced and relentless punishment used to reprogram me. One example was sending me to a locked down rehabilitation facility in Florida to make me into a better soldier instead of offering aid in my time of crisis. The majority of my time in the Navy, the doctors had me on Prozac, Paxil, Zantac, Vistaril, asthma inhalers and numerous other drugs to medicate my mental suffering as seen in Document 2. Thirdly, my character prior to joining the military was unwaveringly just. The only criminal activity that I have ever been guilty of was speeding. I graduated from college with a 3.2 GPA, 90 AFQT military score, never touched a drug (until the medication prescribed to me in the Navy), and my career goal was to enter the criminal justice field to stop drugs from tearing apart families. My college and military tests results are shown under document 3.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copies of twelve pages from applicant's medical record
Special Request and Authorization form, request for separation from the Navy dated February 28, 2000
Statement from applicant dated February 25, 2000
Copy of discharge instructions from Laurel Wood Center dated February 2000
Copy of Gain Entry Report
Copy of official academic record from University of North Texas dated April 21, 1999
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     990619 - 991024  COG

 Period of Service Under Review :
Date of Enlistment: 991025               Date of Discharge: 000715

 Length of Service (years, months, days):

         Active: 00 08 21
         Inactive: None

 Age at Entry: 24                          Years Contracted: 4

 Education Level: 16                        AFQT: 90

 Highest Rate: YNSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF*                 Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 60

*No Marks Found in the service record.

 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 :

000518:  NJP for violation of UCMJ, Article 86 (2 specs): (1) Unauthorized absence from 0700, 4 Apr 00 to 1300, 6 Apr 00 (2 days/surrendered), (2) Unauthorized absence from 0700, 9 Apr 00 to 1700, 9 May 00 (30 days/surrendered).
         Award: Forfeiture of $502.80 per month for 2 months, correctional custody for 30 days. No indication of appeal in the record.
000518:  Retention Warning: Advised of deficiency (Unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
000519:  Applicant to unauthorized absence 0700, 19 May 00.

000616:  Applicant from unauthorized absence 1330, 16 Jun 00 (28 days/surrendered).

000626:  Branch Medical Clinic psychological evaluation:

         Axis II: Personality disorder NOS with antisocial and borderline features, EPTE.

000629:  NJP for violation of UCMJ, Article 86: Unauthorized absence from unit.
         Award: Forfeiture of $502.80 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
000629:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of convenience of the government due to a personality disorder and misconduct due to a pattern of misconduct.
000629:  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.

000822:  Commanding Officer recommended discharge under other than honorable conditions by reason of convenience of the government due to a personality disorder and misconduct due to a pattern of misconduct.

000829:  Chief of Naval Education and Training, Pensacola, FL 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 000715 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).

Issue 1. The Board found that the applicant’s medical care received during his tour on active duty and the applicant’s medical condition do not mitigate his misconduct sufficient to warrant an upgrade to his discharge. While he may feel that ineffective counseling and medical care were factors that contributed to his actions, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service. Despite the applicant’s claims that his unauthorized absences should be mitigated by his family problems, 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. Relief denied.

Issue 2. A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor. T he applicant’s service was marred by award of nonjudicial punishment (NJP) on two occasions and adverse counseling entries on other occasions. The applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for a characterization of service under honorable conditions. The applicant’s character notwithstanding his unauthorized absences and personality disorder is not sufficient to mitigate his misconduct. The applicant’s alleged mental and physical condition during his tour of service is not sufficient to mitigate his misconduct. An upgrade would be inappropriate. Relief denied.

 The applicant’s discharge characterization accurately reflects his service to his country. 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. Relief not warranted.

The applicant 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. Representation at a personal appearance hearing is recommended but not required.


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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