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NAVY | DRB | 2002_Navy | ND02-00429
Original file (ND02-00429.rtf) Auto-classification: Denied


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

ex-FCSA, USN
Docket No. ND02-00429

Applicant’s Request
The application for discharge review, received 020226, 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. Subsequent to the application, the applicant obtained representation by the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030107. 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, as submitted

1. (Equity Issue) This former member proffers his UCMJ violations were only isolated incidents that were caused by his psychological problems. Given the fact that the majority of his service period was served honorably, he opines that a General (Under Honorable Conditions) discharge is warranted.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     870618 - 870908  COG

 Period of Service Under Review :
Date of Enlistment: 870909               Date of Discharge: 920710

 Length of Service (years, months, days):

         Active: 04 10 02
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4 (+24 month extension)

 Education Level: 12                        AFQT: 81

 Highest Rate: FC3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.64 (5)    Behavior: 3.68 (5)                OTA : 3.64

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, NUC, NDSM, JMU

 Days of Unauthorized Absence: 14

 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 :

890329:  Medical record: Impression: No psychiatric diagnosis. Recommendation: 1) Psychiatrically fit for full duty. 2) No psychiatric follow up is required. 3) Applicant to increase exercise, increase sleep time and maintain balanced diet. 4) Above discussed with Applicant.

901009:  Applicant to unauthorized absence 0745, 9Oct90.

901010:  Applicant missed ship's movement.

901015:  Applicant declared a deserter.
901018:  Applicant from unauthorized absence 1012, 18Oct90 (9 days/surrendered).

 901020:  Applicant to unauthorized absence from 0730, 20Oct90.

 901025:  Applicant from unauthorized absence at 0730, 25Oct90 (5 days/surrendered).
901108:  NJP for violation of UCMJ, Article 86 (2 specs): (1) Unauthorized absence from 9Oct90 to 18Oct90, (2) Unauthorized absence from 20Oct90 to 25Oct90, violation of UCMJ, Article 87: Missing movement, violation of UCMJ, Article 134: Disorderly conduct.
         Award: Forfeiture of $460 per month for 2 months, restriction for 60 days, reduction to FCSN. No indication of appeal in the record.
901113:  Retention Warning: Advised of deficiency (Unauthorized absence, missing movement, and disorderly conduct), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
920420:  Results of Marks Adult MMPI test found in medical record.

920420:  Branch Medical Clinic: ...Do not feel anything more than adjustment disorder with mixed features for Axis I. But Axis II showed probable Paranoid/Schizotypal and patient shows a peculiar affect. Will contact ship for further info. Patient to be seen 27Apr92.

920427:  Branch Medical Clinic: S.O: Pt reports "all I told you last week was true." Patient had confided a history of "fantasies about putting dead animals or blood on XO's door… or beating him up.” Denied that he would actually do these things.
         Also confided a homosexual encounter of a voluntary nature. Pt today agrees to admit to a homosexual act knowing that this will result in discharge. Letter written. A: Homosexual behavior incompatible with military service. P: Letter for ADSEP.

920501:  Report of Medical examination: Summary of defects and diagnoses: Personality - 1) Homosexuality, 2) Paranoid, schizotypal personality disorder. Recommendation: Follow up at VA psychiatry clinic for further evaluation and therapy as needed after separation.

920602:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of homosexuality due to statement of homosexuality and misconduct due to the commission of a serious offense. [Extracted from CO's message dated 6Jun92.]
920604:  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 and to make a statement. [Extracted from CO's message dated 6Jun92.]
920606:  Commanding Officer recommended discharge under other than honorable conditions by reason of statement of homosexuality and misconduct due to the commission of a serious offense.

920622:  NJP for violation of UCMJ, Article 134: Jumping from vessel into the water.
         Award: Forfeiture of $425 per month for 2 months, restriction and extra duty for 45 days, reduction to FCSA. No indication of appeal in the record.
920623:  Consultation Report: Diagnosis: (Provisional)
 1. Transvestic fetishism.
2. Pedophilia.
 3. Sexual disorder NOS, characterized by persistent and marked distress regarding sexual orientation.
 4. Alcohol abuse.
 5. Post-traumatic stress disorder, related to a childhood history of sexual exploitation/abuse.
Recommendations:
1. Return to homeport (Norfolk); will require funded TAD orders, seabag, health/pay/personnel records.
2. Obtain follow-up psychiatric evaluation ASAP following return to Norfolk.
3. Under no circumstances should this member be returned to any seagoing vessel. He is unfit for shipboard duty and it is unsafe for him to be aboard ship given his type of problems and behavior .
4. Release from active duty should be expedited; if separation cannot be effectively arranged by means of the previous documentation related to homosexual acts, etc., it may be necessary to process him for discharge by means of a medical board for the diagnoses noted above.
5. The patient has been strongly advised to discontinue all use of alcohol and has agreed to do so.

 920625:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

920704:  Message to BUPERS from USS PETERSEN: Unable to comply with BUPERS message of 25Jun92 due to Applicant’s TAD for treatment at NAVHOSP Roosevelt Roads. Applicant left behind for psychiatric evaluation after jumping from a water taxi in St. Croix, endangering himself and shipmates who rescued him.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 920710 under other than honorable conditions for misconduct due to commission of a serious offense (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. 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. Missing ship’s movement, even if only on one occasion, is considered a serious offense. T he Applicant’s service was marred by award of nonjudicial punishment (NJP) on two occasions and an adverse counseling entry on another occasion. The Board found that the Applicant’s age, education level, and test scores qualified him for enlistment. While he may feel that his homosexuality and psychological problems were factors that contributed to his actions, the record clearly reflects his disregard for the requirements of military discipline and demonstrated that he was unfit for further service. 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.

The Applicant’s discharge characterization accurately reflects his service to his country. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident 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), effective 15 Aug 91 until
04 Mar 93, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

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 " 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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