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NAVY | DRB | 2002_Navy | ND02-00773
Original file (ND02-00773.rtf) Auto-classification: Denied


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

ex-HTFA, USN
Docket No. ND02-00773

Applicant’s Request
The application for discharge review, received 020509, 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. In the acknowledgement letter to the Applicant, he was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington D.C. area. The Applicant did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030206. 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. My discharge was not correctly defined, it was based on the only incident that occurred in my enlistment other than the injurys sustained by me underway, at sea, for which I have never been compensated or treated for, because at the time of discharge I was made to sign paper work that relieved the Navy of any responsibility of my injuries.
I respectfully request upgrade of my discharge to General/under Honorable Conditions.
There have been no other instances of misconduct in civilian life since my discharge.

 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):

          Inactive: USNR (DEP)     860203 - 860206  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 860207               Date of Discharge: 880805

 Length of Service (years, months, days):

         Active: 02 05 29
         Inactive: None

 Age at Entry: 24                          Years Contracted: 4

 Education Level: 10 GED           AFQT: 41

 Highest Rate: HTFN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.45 (4)    Behavior: 2.75 (4)                OTA: 3.20

Military Decorations: None

 Unit/Campaign/Service Awards: SSDR

 Days of Unauthorized Absence: None

 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 :

880312   Medical Entry USS SIERRA. Applicant presents to medical complaining of pain in right foot due to falling out of top rack…X-ray ordered, treatment recommended… ice, Motrin, ace wrap, cane given…SIQ one day…light duty 7 days…

880316   Medical Entry USS SIERRA. Pt (Applicant) returned for treatment for injury right foot…X-ray reveals no fracture…continue recommended treatment…

880319   Medical Entry USS SIERRA. Follow up for injury to right foot…recommended treatment…whirlpool, bed rest for 24 hours,

880320   Medical Entry USS SIERRA. Returned for follow-up…recommended treatment…will observe on ward for 24 hours…heating pad…elevation…

880321   Medical Entry USS SIERRA. Medical Officer follow-up.

880322   Medical Entry USS SIERRA. Medical Officer follow-up.

880323   Medical Entry USS SIERRA. Medical Officer follow-up.

880324   Medical Entry USS SIERRA. Medical Officer follow-up.

880402   Medical Entry USS SIERRA. Patient (Applicant) referred to Naval Hospital for further evaluation.

880406   Medical Entry Orthopedic Service, Naval Hospital, Charleston, NC. Applicant complained of falling out of rack six weeks ago and injury to right ankle…treated with Motrin and use of cane while onboard ship. Radiologic Report: Foot: There is normal bony alignment. The osseous structures and soft tissues visualized reveal no abnormalities. Impression: Normal Foot. Ankle: There is normal bone mineralization and alignment. The ankle mortise is well maintained. The soft tissues are normal.

880525   Medical Entry: Patient (Applicant) referred to USS SIERRA Medical Officer by Division Officer stating pt is sullen and withdrawn and “about to lose it.” Pt states simply that he wants out of the Navy. He says he does not fit in…

880602:  NJP for violation of UCMJ, Article 89: Disrespect to a commissioned officer on 880525, violation of UCMJ, Article 91: Disrespect to a petty officer, violation of UCMJ, Article 92: Disobey a lawful order, violation of UCMJ, Article 117: Provoking words and gestures.
         Award: Forfeiture of $85 per month for 2 months, restriction for 20 days and extra duty for 30 days, defrocked to HTFN, reduction to HTFA. Reduction suspended for 6 months. No indication of appeal in the record.
880606   Request for Psychiatric consultation…Patient (Applicant) is excellent worker, but states he does not fit in and needs to move on (i.e., out of Navy)…despite the fact that pt feels isolated, he does not desire to take any advice offered to improve/alleviate situation. Command desires formalized evaluation for possible administrative separation…

880608:  Retention Warning: Advised of deficiency (Your attitude towards United States Navy.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
880616:  NJP for violation of UCMJ, Article 86: Failure to got to appointed place of duty, violation of UCMJ, Article 134: Provoking words and gestures.
         Award: Forfeiture of $85 per month for 2 months, restriction and extra duty for 20 days, reduction to HTFA. No indication of appeal in the record.
880713:  Psychiatric evaluation: Impression: Personality Disorder not otherwise specified with avoidant and passive aggressive features manifested by mistrust and evasiveness, some evidence of tenseness, sensitivity, moodiness discontent and resistance to authority. Present assault to self-esteem with loss of rate. Severe, chronic. Previous loss of civilian job. Pt had also worked way up, exacerbated by present loss of rate. Recommendations: Fully accountable for his actions. He is competent and fit for full duty. 2. A. Administrative separation would be supported psychiatrically due to anticipated severe interference in pt's military adaptability. Unmotivated for treatment. Denies any likely adverse affect of administrative separation although has been counseled in this area.

880714:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of convenience of the government due to personality disorder and misconduct due to the commission of a serious offense.
880714:  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.
880719:  Commanding Officer recommended type warranted by service record discharge by reason of convenience of the government due to personality disorder and misconduct due to the commission of a serious offense. Commanding Officer’s comments (verbatim): HTFA H_ (Applicant’s) overall job performance since reporting aboard has been fair. However, his continued misconduct and unprofessional attitude are deleterious to good order and discipline. His complete disregard of the chain of command and rules and regulations of the U. S. Navy fully warrant separation. HTFA H_ (Applicant) is not recommended for continued Naval service. It is strongly recommended that administrative separation from the Naval service be effected and that the characterization of service be of the type warranted by his service record…]

880801:  CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

 PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 880805 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: In the Applicant’s case the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge was proper and equitable. Although the Applicant states that his discharge was not correctly defined, he did in fact sign documentation specifically regarding the intended recommendation for discharge by reason of convenience of the government due to a personality disorder and misconduct due to the commission of a serious offense(s), with a possible discharge characterization of under other than honorable conditions. The Applicant did not desire to consult with counsel and waived his right to an Administrative Board.

The Applicant’s summary of service is marred by award of non-judicial punishment (NJP) on two occasions. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives that regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of 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. An upgrade to honorable would be inappropriate. Relief denied.

With regard to the Applicant’s injury and allegation of non-treatment. Careful review of the medical documentation reveals that the Applicant received proper medical treatment.

 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. The Applicant did not provide any credible evidence to support post-service conduct as a reason for upgrade. 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
10 Jan 89, Article 3630600, SEPARATION OF ENLISTED MEMBERS 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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