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NAVY | DRB | 2002_Navy | ND02-00675
Original file (ND02-00675.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND02-00675

Applicant’s Request
The application for discharge review, received 020415, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to Secretarial Authority. 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 030228. 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, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. (Equity Issue) This former member avers that a sleep disorder not properly treated by the Navy contributed to and extenuated his misconduct of record. On this basis, he opines that upgrade of his characterization of service to Honorable and a change of his reason for discharge to Secretarial Authority 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:
Applicant's DD Form 214
Five page statement, undated
Letter to CO NTC from Applicant, undated

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR(DEP)               981006 - 990106  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 990107               Date of Discharge: 000316

 Length of Service (years, months, days):

         Active: 01 02 10 [Does not exclude lost time]
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 98

 Highest Rate: ETSA

 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: 36

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605). [Note BUPERSINST 1900.8 list the authority as 3630600 instead of 3630605]

 Chronological Listing of Significant Service Events :

990902   Mental Health Department, Great Lakes, Medical Report:
         Referred from medical services, reportedly because of “hypersomnolence, daytime drowsiness when sitting still.”
 Presenting complaint: “oversleeping—since boot camp.”
Descriptive Diagnoses (DSM IV-R):
Axis I: Parasomnia, NOS 307.37. Axis II: No Diagnosis V71.09. Axis III: No Known Medical Disorder by History. Axis IV: Normal Stressors of Military Active Duty, including SSC. Axis V: Global Assessment of Functioning: 65.
Goals: 1. Learn specific coping skills to deal with tendency toward sleep disturbance, specifically become more aware of dietary effects upon his sleep. 2. Accept responsibility for continued management of his own life; specifically differentiate which opinions are truly his and which are borrowed from others. Administrative Disposition: Return to duty.
Clinical Disposition: 1. Patient (Applicant) was educated as to the diagnostic impression, results of any testing done and recommendations. 2. Service member (Applicant) was advised of the expected benefits and probable side effects of the possible treatments. He voiced an understanding of our discussion, and after informed consent was obtained, accepted the following recommendation: (a) that his thyroid values be checked along with his magnesium level; (b) that he return for further sessions of individual psychotherapy; (c) that he begin placing most of his dietary protein into his breakfast and lunch and most of his dietary carbohydrates into his dinner. 3. Service member (Applicant) is not judged to have a medical condition that would inherently preclude transfer or fitness for full duty. He should be expected to continue performing his military duties. He must be considered fully responsible for his actions.

 991123:  Applicant admitted to Naval Hospital for attempted overdose on sleeping pills.
991129:  Applicant released from Naval Hospital. Extracts from Clinical Record.
 Discharge diagnosis:
Axis I: Adjustment disorder. Axis II: Narcissistic traits. Axis III: Strep pharyngitis - resolved. Axis IV: Occupational stressors, separation from social support. Axis V: Global assessment of functions: 80.
Plan:
1. Given this service member’s (Applicant’s) obvious inability to adapt to the military, as evidenced by his decreased concentration with resulting poor performance in school, previous intermittent suicidal ideation with plan, depressed mood and poor motivation, it is strongly recommended that he be given an Administrative Separation from the service. If this service member (Applicant) is allowed to remaining the service, he will continue to be a risk of harm to himself and will likely require further psychiatric intervention. 2. The patient (Applicant) is discharged to his parent command…Discharge diagnoses and recommendations were discussed with the individual (Applicant).
3. No medications. 4. Activity: As tolerated. 5. The patient is to follow up with the Mental Health Clinic at Service School Command or the emergency room if his condition worsens. 6. Follow up groups were offered…the patient (Applicant) refused any type of follow up at this time.
991208:  Psychological Evaluation from Head, Mental Health Department to Administrative Separation Division. SNM (Applicant) has been evaluated by the Mental Health Department and is considered unsuitable for military service…SNM (Applicant) is diagnosed with the following severe disorder: Adjustment disorder, not otherwise specified. This personality disorder not considered amenable to effective treatment in the military setting. SNM is considered to present continuing danger to himself or others should expeditious administrative separation not be undertaken.
991208   Applicant to unauthorized absence.

000113   Applicant returned from unauthorized absence.

000121   Branch Medical Clinic, Great Lakes. Patient (Applicant) complained of sleeping disorder…complained of insomnia…Patient (Applicant) is now without motivation for continued military service and wants to be discharged.

000125   DD Form 214 indicates lost time on this date thru 000126.

000209:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0600, 991208 until 0715, 000113 (36 days).
         Award: Forfeiture of $502 per month for 2 months, restriction and extra duty for 45 days, reduction to SR. No indication of appeal in the record.

000217:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.
000217:  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

000222:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.

000301:  Commander, Naval Training Center, San Diego, CA directed the Applicant's discharge under other than honorable conditions by reason of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 000316 under other than honorable conditions for misconduct; absent without leave - 30 days or more (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 disagrees with the Applicant’s assertion that his sleep disorder was not properly treated and extenuated his misconduct of record. According to the medical record, there is no evidence that the Applicant availed himself of the recommended treatment plan, in fact there is documented evidence to the contrary: at one point the Applicant actually refused follow up treatment. Additionally, the Applicant was found to be medically competent and fully responsible for his actions.

While it appears, from the medical record, that the Applicant was recommended by competent medical authority to be administratively separated due to the severity of a subsequently diagnosed personality disorder, the Applicant commenced an unauthorized absence period in excess of 30 days before any further processing could occur. This misconduct could have resulted in a punitive discharge if adjudged at a Special or General Court-Martial. The Applicant was awarded non-judicial punishment (NJP) for his unauthorized absence and recommended for separation.

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. Furthermore, 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. The Applicant was responsible for his actions and must accept the consequences of his own misconduct. An upgrade to honorable would be inappropriate. Relief denied.
Issue 2: T here 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, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct. At this time the Applicant has not provided sufficient documentation of good character and conduct to mitigate his misconduct while on active duty. 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 15560C), Change 18, effective
12 Dec 97 until Present, Article 1910-142 [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article [e.g., 86, for unauthorized absence for a period in excess of 30 days] if adjudged at a Special or General Court-Martial.

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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