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NAVY | DRB | 2002_Navy | ND02-00692
Original file (ND02-00692.rtf) Auto-classification: Denied


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

ex-ICFR, USNR
Docket No. ND02-00692

Applicant’s Request
The application for discharge review, received 020418, requested that the characterization of service on the discharge be changed to honorable or 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 030414. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned that the Applicant’s discharge was improper. The Board’s vote was unanimous that the character of the discharge shall change to GENERAL (UNDER HONORABLE CONDITIONS). The Board’s vote was 4 to 1 that the reason for the Applicant’s discharge shall change to SECRETARIAL AUTHORITY, authority: NAVMILPERSMAN, Article 1910-164 (formerly 3630900).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. (Equity Issue) This former member avers that he has grown more focused and desires to seek employment with the Los Angeles Fire Department and is attending school at Oxnard College to obtain a degree towards that end; that the present character of discharge will prevent him for doing so and as such warrants 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:
Applicant 's DD Form 214
Transcript from Oxnard College dated February 20, 2002
Receipt of firefighter notification card
Letter from Applicant dated January 25, 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: None
         Active: None

 Period of Service Under Review :
Date of Enlistment: 970311               Date of Discharge: 980317

 Length of Service (years, months, days):

         Active: 01 00 07
         Inactive: None

 Age at Entry: 18                          Years Contracted: 8

 Education Level: 12                        AFQT: 53

 Highest Rate: ICFA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.00 (1)    Behavior: 1.00 (1)                OTA: 1.67

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 28

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

UNDER OTHER THAN HONORABLE CONDITIONS/PERSONALITY DISORDER, authority: NAVMILPERSMAN, Article 1910-122 (formerly 3620225).

 Chronological Listing of Significant Service Events :

980110:  Applicant to unauthorized absence 0545, 980110.

980111:  Applicant missed sailing of vessel.

 980207:  Applicant from unauthorized absence 2137, 980207 (28 days/surrendered).
980211:  NJP for violation of UCMJ, Article 86: Unauthorized absence; violation of UCMJ, Article 87: Missing ship's movement.
         Award: Forfeiture of $354 per month for 2 months, restriction and extra duty for 45 days, reduction to FR. Reduction suspended for 6 months. No indication of appeal in the record.
980211:  Retention Warning: Advised of deficiency (Unauthorized absence and missing ship's movement.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
980227:  Medical officer statement: Applicant diagnosed with an adjustment disorder with disturbance of conduct and personality disorder not otherwise specified with antisocial and narcissistic features. The psychiatrist recommended separation based on a personality disorder of such severity as to render the Applicant incapable of serving adequately in the naval service.
980311:  Applicant notified of intended recommendation for discharge with a general (under other than honorable conditions) by reason of convenience of the government on the basis of a diagnosed personality disorder of such severity as to render the Applicant incapable of serving adequately in the naval service as evidenced by the recommendation from Naval Medical Center San Diego Department of Psychiatry.
UNDATED:         Applicant advised of 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.
980317:  DD Form 214: Applicant discharged with an under other than honorable conditions by reason of convenience of the government on the basis of a personality disorder.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 980317 with an under other than honorable conditions for convenience of the government on the basis of a diagnosed personality disorder of such severity as to render the Applicant incapable of serving adequately in the naval service (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 improper because the member was not properly counseled as to how the personality disorder effected his performance nor given the opportunity to correct his deficiencies (C and D). The Board felt it important to note a counseling is not normally required when the member is deemed to be a risk to himself or others. The Applicant’s medical documentation dated 25 Feb 19987 states: “Although not considered currently suicidal or homicidal, this member is judged to represent a continuing risk to himself and others if retained in the United States Navy." The regulation, MILPERSMAN Article 1910-122, in effect at the time of Applicant's discharge, required the issuance of NAVPERS 1070/613 counseling/warning, and sufficient time to correct deficiencies, prior to discharge action. The Applicant was not afforded the required counseling/ warning, thus the procedures for discharge action based on convenience of the Government due to personality disorder were not followed Additionally, there was an administrative error noted on the original DD-214. Specifically, per MILPERSMAN Article 1910-122, an Other Than Honorable discharge is not an available characterization for an individual discharged due to a personality disorder. Considering the member’s service record, to include a non-judicial punishment for violation of Article 86 (UA 23 days) and Article 87 (missing ship’s movement) of the UCMJ, the Board determined that a General (Under Honorable Conditions) discharge was the most appropriate characterization for the Applicant’s discharge. For propriety and equity reasons, the Board voted to change the Applicant’s discharge to General (Under Honorable Conditions) /Secretarial Authority.

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 97 until 31 Aug 1998, Article 1910-122 (formerly 3620225), SEPARATION BY REASON OF CONVENIENCE OF THE GOVERNMENT - PERSONALITY DISORDER(S).

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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