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NAVY | DRB | 2002_Navy | ND02-00541
Original file (ND02-00541.rtf) Auto-classification: Denied


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

ex-SHSA, USN
Docket No. ND02-00541

Applicant’s Request
The application for discharge review, received 020321, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to honorable. 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 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 and the reason for discharge shall not change. The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. (Equity Issue) This former member avers that her refusal to take the anthrax vaccination, the primary reason for her discharge, was justified given the potential long term heath effects of the drug. On this basis, she opines that recharacterization of service period to full honorable is warranted.

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
Statement from Applicant, dated March 7, 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     960531 - 970310  COG

 Period of Service Under Review :
Date of Enlistment: 970311               Date of Discharge: 000224

 Length of Service (years, months, days):

         Active: 02 11 14
         Inactive: None

 Age at Entry: 22                          Years Contracted: 4

 Education Level: 12                        AFQT: 49

 Highest Rate: SHSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (1)    Behavior: 3.00 (1)                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):

GENERAL (UNDER HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).


 Chronological Listing of Significant Service Events :

970327:  Drug and Alcohol Abuse Report: Marijuana abuse, ashore off duty. Service directed urinalysis 970326.
971212:  NJP for violation of UCMJ, Article 86 (2 specs): Failed to go to appointed place of duty on 19Nov97 and 21Nov97.
         Award: Restriction and extra duty for 10 days. No indication of appeal in the record.
971212:  Retention Warning: Advised of deficiency (Unauthorized absence (2 specifications)), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 981015:  NJP for violation of UCMJ, Article 134: Soliciting another to commit an offense 12Oct98.
         Award: Restriction for 14 days. No indication of appeal in the record.
990223:  Retention Warning: Advised of deficiency (Unauthorized absence and general timeliness problems. Poor personal and berthing area appearance. Careless work habits. Avoidance of work and responsibility. Reluctance to accept guidance and direction.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 991021:  NJP for violation of UCMJ, Article 92: Failure to obey an order or regulation on 20Oct99.
         Award: Forfeiture of $537 per month for 2 months, restriction and extra duty for 45 days, reduction to SHSA. No indication of appeal in the record.
991021:  Retention Warning: Advised of deficiency (Trained on the anthrax vaccine. Acknowledged all deploying personnel in the United States military force are required to take the anthrax vaccine. Refused to receive the anthrax vaccine on 20Oct99. Acknowledged Commanding Officer's lawful order to take the anthrax vaccine. Refusal to take anthrax vaccine subjects you to disciplinary actions under the UCMJ.).
991022:  Clinical Psychologist Evaluation: Diagnostic Impression: Axis I: Adjustment disorder with depressed mood, severe. Axis II: Personality disorder, NOS, with immature and dependent features.
991028:  NJP for violation of UCMJ, Article 115: Malingering from 21Oct99 to 28Oct99, to wit: feign mental illness.
         Award: Oral reprimand. No indication of appeal in the record.
991210:  Applicant notified of intended recommendation for 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.
991210:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
991210:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to a pattern of misconduct, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

000202:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to a commission of a serious offense. Commanding Officer’s comments (verbatim): SHSA (Applicant) does not exhibit the desire to stay in the Navy or the attitude to be a productive member of my ship. The command has made a concerted effort to turn her attitude around. In a course of two years, SHSA (Applicant) has gone to Captain's Mast four times. Without a doubt there is evidence on Pattern of Misconduct. Should she have been discharged earlier? Does the Navy give up so quickly in salvaging sailors? Not on DECATUR. Her quiet demeanor disguised her unhappiness. I suspect she joined the Navy to please her parents. It appears that her heart was not in it from the start. Regardless, we believed that with the right guidance she could be a productive member of our crew. Her depressed moods were not as a result of an oppressive command climate but a self-induced state of mind. These overate bouts of depression interestingly coincided with periods of restriction to the ship. Why was SHSA (Applicant) processed shortly after refusing ANTHRAX while other sailors remained? For the record, four sailors went to mast on the same charge. Three of four are deployed with me today. If I had a choice I would have liked to have seen four of four deploy. Why? Duty, Honor , Country. Did I look for a way to leave SHSA (Applicant) behind? Quite the contrary, we advised her she was still deploying. I believe that SHSA (Applicant) realized that it appeared inevitable that she was going to deploy so she made overt actions to see a mental health physician. Results of the mental evaluation showed her responsible for her actions. At this point, it was clear that this individual would do anything not to complete her duty honorably and deploy on a ship that relied heavily on every crewmember. Regretfully, she gave me no other recourse but to process her for separation for the good of the Navy. Her pre-mediated actions to curtail her commitment to our country do not warrant a Honorable or General Discharge

000216:  COMNAVSURFAC directed the Applicant's discharge general (under 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 000224 with a General (Under Honorable Conditions) discharge 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).

The Applicant contends that her discharge was the result of her refusal to accept the anthrax vaccination. Contrary to her claim, the Applicant was discharged for a pattern of misconduct, which required the imposition of nonjudicial punishment on four occasions (12 February 1997, 15 October 1998, 21 October 1999 and 28 October 1999). The record clearly reflects the pattern of misconduct. The NDRB failed to find any issues reflecting an impropriety or inequity.

The Applicant contends her naval service affected her mental health and that the NDRB should review her medical records. A medical diagnosis whether proper or improper is not an issue upon which the NDRB can grant relief. When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant's performance and ability to conform to the military stands of conduct and discipline. The NDRB does not consider the Applicant's stated condition, the implied correct diagnosis, or the medical treatment given to the Applicant. The NDRB only has authority to change the basis of a discharge or characterization of service if it was improper or inequitable. If the Applicant wishes to challenge her discharge based upon a misdiagnosis or improper medical treatment, she should file a petition with the Board of Corrections for Naval Records. Accordingly, relief is denied.

The following is provided for the benefit of the Applicant. Normally, to permit relief, the discharge or characterization of the Applicant's service had to be improper or inequitable. 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. Relief denied.



 The Applicant is reminded that the period of eligibility for a personal appearance hearing is 15 years from the date of discharge. The application package must be submitted to the NDRB prior to the expiration of the 15 year period. 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 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 “ 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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