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NAVY | DRB | 2002_Navy | ND02-00439
Original file (ND02-00439.rtf) Auto-classification: Denied


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

ex-PCSR, USN
Docket No. ND02-00439

Applicant’s Request
The application for discharge review, received 020228, 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 listed the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 021029. 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/Separation in lieu of trial by court martial, authority: NAVMILPERSMAN, Article 3630650.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. (Equity Issue) This former member avers that his mixed personality disorder that was diagnosed in service contributed to and sufficiently extenuated his misconduct of record to warrant upgrade of his characterization of service.

2. (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Appointment of Veterans Service Organization form VA Form 21-22
Letter from Seventh Judicial District, Department of Correctional Services,
parole/probation officer dated November 13, 2001
 Letter from Department of Veterans Affairs, Homeless Outreach Social Worker
dated November 11, 2001
 Character reference from a friend dated July 22, 2001
Letter from National Personal Records Center to Honorable J_ A_ L_ dated June
22, 2001
 Copy of authorization for release of military medical patient records dated June 21,
2001
 Two hundred and seventy pages from Applicant's service records

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     860815 - 870614  COG

 Period of Service Under Review :
Date of Enlistment: 870615                        Date of Discharge: 881208

 Length of Service (years, months, days):

         Active: 01 05 24
         Inactive: None

 Age at Entry: 17 Parental Consent                Years Contracted: 4

 Education Level: 12                        AFQT: 50

 Highest Rate: PCSA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.90 (2)    Behavior: 3.00 (2)                OTA: 3.00

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/separation in lieu of trial by court martial, authority: NAVMILPERSMAN, Article 3630650.

 Chronological Listing of Significant Service Events :

871024:  Reported to Naval Support Office, La Maddalena, Italy, for duty.

 871216:  Counseling: Advised of deficiency (personal behavior, dress/appearance.), notified of corrective actions and assistance available.
871217:  Counseling: Advised of deficiency (Problems with getting haircut.). Applicant is currently being evaluated for alcohol dependency.
871217:  Counseling: Advised of deficiency (Personal behavior, dress/appearance and responsibilities.), notified of corrective actions and assistance available.
880104:  Counseling: Advised of deficiency (Poor personal hygiene, careless, lack of attention to detail, sloppy at times militarily i.e. haircuts, inability, non-willingness to follow directions correctly), notified of corrective actions and assistance available.
880122:  Counseling: Advised of deficiency (performance, personal behavior and responsibilities.), notified of corrective actions and assistance available.

880203:  Retention Warning: Advised of deficiency (Lack of attention to detail in discharging duties. Frequent instances of late arrivals at work.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

880223:  NJP for violation of UCMJ, Article 86 (2 specs): (1) Failure to go to appointed place of duty on 22Jan88, (2) Failure to go to appointed place of duty on 6Feb88, violation of Article 92: Dereliction of duty on 4Feb88, failure to obey a lawful order on 4Feb88, violation of Article 108: Destruction of military property on 20Jan88, violation of UCMJ, Article 134: Leaving the scene of an accident on 20Jan88.
         Award: Forfeiture of $300 per month for 2 months, extra duty for 45 days, reduction to PCSA and oral reprimand. No indication of appeal in the record. [Complete NJP extracted from Commanding Officer's message dated 880723.]
880223:  Counseling: Advised of deficiency (Attention to detail, personal appearance, keep haircut.), notified of corrective actions.

880622:  Counseling: Advised of deficiency (unsat uniform), notified of corrective actions and assistance available.

880623:  Counseling: Advised of deficiency (Came back to work in the same dirty uniform worn the day previously. Also had told to get a haircut. Two weeks previously told to trim mustache.), notified of corrective actions and assistance available.

880624:  Counseling: Advised of deficiency (Unsat to not keep me informed about what was going on.), notified of corrective actions and assistance available.

880707:  Report and disposition of offense(s): Violation of UCMJ, Article 111: Operate a government vehicle in a reckless manner on 880707, Article 108: Damaging government property on 880707 by hitting a parked minivan and breaking the rear side door window.

880708:  Ambulance Report Sheet: S/P: Suicide Gesture with ingestion of Motrin and possibly Tylenol overdose.

880710:  Discharged to full duty. Not currently suicidal, homicidal or psychotic per psych eval.

880713:  Applicant notified of intended recommendation for discharge with an under honorable conditions (general) by reason of unsatisfactory performance as evidence by your lack of attention to detail in discharging your duties as a postal clerk and your inability to comply with regulations concerning military behavior and appearance.
880714:  Applicant advised of his rights and having consulted 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 submit a statement. Applicant objected to the separation.
880714:  Counseling: Advised of deficiency (Pay attention to what you're doing, listen to superiors, wear a proper uniform, keep your haircut.), notified of corrective actions and assistance available.

880723:  Commanding Officer, U.S. Navy Support Office (NAVSUPPO), La Maddalena, Italy, recommended to CNMPC, that Applicant be discharged due to unsatisfactory performance.

880801:  CNMPC advised CO, NAVSUPPO no action taken on the discharge request since member has one or more valid reasons for misconduct and therefore must be processed for misconduct. If desired, command may reprocess member for separation for "misconduct due to commission of a serious offense" using the administrative board procedures.

880809:  NJP for violation of UCMJ, Article 134: Wrongfully secret certain mail on 8May88, to wit: a letter addressed to Commanding Officer.
         Award: Oral reprimand, extra duty for 45 days. No indication of appeal in the record.

880812:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by the non-judicial punishment on 9 August 1988 for secreting mail.
880812:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

 880819:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed a serious offense, that the misconduct did not warrant separation, and recommended retention and Applicant receive proper supervision.

880907:  Psychiatric evaluation: Impression: (1) Not currently suicidal/homicidal or psychotic. Applicant found to be fully responsible for actions. (2) Alcohol abuse vs alcohol dependence by history. (3) Mixed personality disorder with immature dependent & avoidant features mod-severe EPTE. (4) Status post Motrin overdose. Recommendation: (1) Return to full duty when medically cleared. (2) Should member fail to adequately adjust to military life command should consider admin separation IAW NPC Man Art 3620200.
880913:  Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 86: Failure to go appointed place of duty at time prescribed on 1800 to 2000, 27Aug88 and Article 121: Steal four VHS video tapes, a value of $174.71, the property of the Recreational Services Department between 26Jun88 and 31Aug88.
881005:  Commanding Officer, U.S. Navy Support Office, La Maddalena, Italy, recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

         Note: Commence apparent dual processing of Applicant’s discharge.
881021:  Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial. Applicant consulted with counsel and was fully advised of the implications of request. The Applicant stated understood the elements of the offense(s) with which was charged, and admitted was guilty of all the charges preferred against Applicant. Specifically, admitted to violating UCMJ, Article 86: Failure to go appointed place of duty at time prescribed on 1800 to 2000, 27Aug88 and Article 121: Steal four VHS video tapes, a value of $174.71, the property of the Recreational Services Department between 26Jun88 and 31Aug88. The Applicant stated was completely satisfied with the counsel he had received. The Applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veterans' benefits based upon current enlistment, and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing.

881104:  Report of Medical Examination: Separation examination: Notes: 1. Alcohol abuse in past - has been through Level II, has not had ETOH intake in > 6 months. 2. 6 months ago saw psychiatrist upon Motrin o.d. - dx of mixed personality disorder. This patient has been examined. He has had no changes since final visit to see psychiatrist. Hs is not in need of another psychiatric consultation prior to discharge from the service. Summary of defects and diagnoses: 1. Needs eye retraction for glasses 2. History of alcohol abuse - may need to be monitored in future. 3. Dx of mixed personality disorder by psychiatry.

 881109:  Commanding Officer, U.S. Naval Support Office, La Maddalena, Italy, recommended to the Commander, Fleet Air Mediterranean, Naples approval of Applicant's request for discharge in lieu of trial by court-martial. Commanding Officer's comments: "SR H_ (Applicant)'s continued presence on active duty is detrimental to the good order and discipline of this command. He has received an enormous time commitment from his supervisors and has been unwilling to conform to the responsibilities of naval service. SR H_ (Applicant)'s abysmal disciplinary record of the past 12 months (2 non-judicial punishments totalling 7 violations of the U.C.M.J.) finally has culminated with the referral of the charges in question to a special court-martial. His request for characterization of his service by an other than honorable administrative discharge in lieu of trial by special court-martial is most appropriate when viewed in context with the current charges and his past performance."
881115:  Commander, Fleet Air Mediterranean Naples, exercising GCMCA, approved the request for an administrative separation in lieu of a trial by court-martial, and directed Applicant’s discharge.

 881125:  Chief of Naval Personnel recommended to Assistant Secretary of the Navy (Manpower and Reserve Affairs) Applicant be discharged with a general discharge under honorable conditions by reason of misconduct due to the commission of a serious offense.
        
Note: This determination was based upon the service record and the findings of the administrative board for retention.

881128:  Transferred to Naval Station Philadelphia, PA for separation.

881130:  Assistant Secretary of the Navy (Manpower and Reserve Affairs) directed Applicant's discharge with a general discharge, under honorable conditions by reason of misconduct due to the commission of a serious offense.

881208:  Applicant discharged with an Other Than Honorable Condition in lieu of trial by court-martial.
        
         Note: Applicant’s decision to accept an OTH in lieu of trial by court-martial supersedes any other discharge documentation.

 881209:  CNMPC directed NAVSUPPO La Maddalena, Italy, to discharge Applicant under honorable conditions (general) by reason of misconduct due to the commission of a serious offense.
890103:  PSD Philadelphia PA advised CNMPC unable to comply with discharge authority directed on 881209 since Applicant was discharged on 88DEC08 under the authority of MILPERSMAN 3630650 (separation in lieu of trial by court martial) as directed by COMFAIRMED Naples ltr of 88NOV15

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 881208 under other than honorable conditions in lieu of a trial by court-martial (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: When reviewing a discharge, the NDRB does consider the extent to which a medical condition might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline. Competent medical authority, diagnosed the Applicant as having a Mixed Personality Disorder with Immature Dependent and Avoidant features. The medical record specifically states that the Applicant was found to be fully responsible for his actions. In addition, the service record is devoid of any evidence that Applicant was not responsible for his actions and therefore should be held accountable for his own misconduct. The Applicant’s service record is marred by numerous documented counseling sessions, award of non-judicial punishment on two occasions, and, charges were preferred to a special court-martial. The Applicant’s request for an administrative discharge in lieu of a trial by court martial was granted. The discharge was proper and equitable. Relief denied.

Issue 2: 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. The evidence submitted by the Applicant does not mitigate his conduct while on active duty, and therefore an upgrade based on post-service conduct is not warranted. Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Representation at a personal appearance hearing is recommended but not required.



Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560A), effective 15 Jun 87 until 24 May 89, Article 3630650, PROCEDURES FOR PROCESSING ENLISTED PERSONNEL FOR SEPARATION IN LIEU OF TRIAL BY COURTMARTIAL.

B. A punitive bad conduct discharge may be adjudged for violation of the Uniform Code of Military Justice, Article [e.g., 86, unauthorized absence for a period more than 30 days] upon conviction by a Special or General Court-Martial, in accordance with the Manual for Courts-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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