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NAVY | DRB | 2002_Navy | ND02-00962
Original file (ND02-00962.rtf) Auto-classification: Denied


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

ex-MMFN, USN
Docket No. ND02-00962

Applicant’s Request
The application for discharge review, received 020626, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to medical discharge. The Applicant requested a personal appearance hearing. The Applicant designated the Disabled American Veterans as the representative on the DD Form 293. Subsequent to the application, the Board converted the case to a documentary review since Applicant failed to respond to the Scheduling Notice. Applicant is not eligible for further review by this Board.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030331. 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 narrative reason of the discharge shall not change. The discharge shall remain: UNDER HONORABLE CONDITIONS (GENERAL)/Other physical/mental conditions - personality disorder, authority: NAVMILPERSMAN, Article 3620200.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. At the J.A.G. Hearing I attended in June 1988 at the Subic Bay, Philippines Transient barracks; I received at the Panel’s Judgement a full Honorable and medical reasons discharge. Later that week, on the day I was transferred back to the U.S. for discharge, I was forced to sign off on a General Under Honorable Discharge by the Commanding Officer. I signed off under duress, and without the availability of J.A.G. counsel. I requested that my JAG lawyer be present for the conversation, but was told by the C.O. that if I did not sign off on the new discharge that I would immediately be placed in the brig and that he would find a charge and file it against me so that I would receive a Dishonorable Discharge at Court-Marshal. I did not know at the time that I was waiving most of what would become my veterans' rights nor that I would have no V.A. medical care. I am petitioning such that my discharge record would be amended only to that which I received at my JAG discharge hearing in Subic Bay, Philippines in June of 1988. An Honorable Discharge Under Medical Conditions.

Submitted by DAV:
 2. After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current General Under Honorable Conditions, to that of Honorable.

The FSM served on active service from February 23, 1987 to June 30, 1988 at which time he was discharged due to Other Physical / Mental Condition – Personality Disorder, with the current General discharge.

The FSM contends the current discharge is improper, and by virtue of the application, requests a review of the evidentiary record for impropriety. Further he states that he received a panel judgment of a full Honorable Discharge with medical reasons at his hearing while stationed in the Philippines. On the day that he was to be transferred back to the states, his Company Commander presented him with a General Discharge and forced him to sign without benefit of JAG Counsel’s review of the change in discharge. Advising the FSM, if he did not sign the document would be place in the Brig.

Even if only a portion of this is true it was and is still within the regulations to provide an Honorable discharge, if the sole basis is the Personality Disorder, given the FSM’s one year and four months of active service.

He did not know that at the time he was waiving his right to most of his medical benefits with the Veteran’s Administration. He therefore is seeking equitable relief in the form of an upgrade of his current discharge to that of Honorable.

This creates a need for a review of the application of the standard, for the Board to determine that the Applicant’s discharge was improper. The Board will determine which character of discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the Applicant submits to the Board’s discretionary authority.

Additionally, as it appears that the only issue during the FSM’s period of active duty was the personality disorder, and no issue of misconduct, we then ask that the Board follow the guidelines of the SECNAVIST and DOD Instruction and grant the upgrade of discharge to Honorable, providing equitable relief to the former service member.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the Applicant.
Documentation
Only the service and medical records were reviewed by the Board, as the Applicant did not provide additional documentation for the Board to consider.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     870128 - 870222  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 870223               Date of Discharge: 880630

 Length of Service (years, months, days):

         Active: 01 04 08
         Inactive: None

 Age at Entry: 17 (Parental Consent)      Years Contracted: 4 (24 months extension)

 Education Level: 12                        AFQT: 87

 Highest Rate: MM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.4 (1)              Behavior: 2.8 (1)                 OTA: 3.28

 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 HONORABLE CONDITIONS (GENERAL)/Other physical/mental conditions - personality disorder, authority: NAVMILPERSMAN, Article 3620200.

 Chronological Listing of Significant Service Events :

870312:  Recruit Eval Unit, Naval Hospital, Great Lakes, IL: Pt interviewed and given brief psychological testing. It has been determined that the pt is psychologically fit for duty. Referral for noted changes in performance, excessive sick call chits, lethargy, etc. No psychological diagnosis. Is on several medications for sinusitis which cause side effects such as lethargy, etc. No psychological diagnosis made. Returned to Duty.
880407:  NJP for violation of UCMJ, Article 128: Unlawfully strike a PO2.
         Award: Forfeiture of $350 per month for 2 months, restriction and extra duty for 45 days, reduction to E-3. No indication of appeal in the record.

880411:  Retention Warning: Advised of deficiency (misconduct resulting in NJP on 7 Apr 1988, for fighting with a PO2), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
880411:  Medical Department, USS PELELIU: Transferred from USS FORT FISHER to USS PELELIU for eval due to member being involved in a alcohol related incident and violation of UCMJ, Article 128 (Assault). 19 year old male here for alcohol evaluation. NJP as above said to be alcohol related. Denies regular alcohol use. Drinks occasionally with friends. Does not think above NJP due to his intoxication - sees himself as victim. No previous alcohol related offenses. Experimented with marijuana prior to Naval Service. Denies family history of alcoholism, drug abuse, depression. Member does not know why he is here - "I've only had one incident." No blackouts, shakes, seizures.
         Assessment: episodic alcohol abuse; question motivation to remain alcohol free.
         Recommendation: 1) DAPA counseling; 2) question use of Antabuse in this member who shows limited insight into alcohol abuse; 3) will do baseline LFTs.
880517:  Applicant's suicidal note to the Executive Officer.

 880518:  Admitted to USS FORT FISHER medical ward: 19 year old male admitted after suicide gesture. On 18 May, pt took 30 600mg Motrin tablets and 30 25mg Erythromycin tablets at 2100. He left a note which was quickly found by his best friend - taken to medical & vomited approximately 20 pills after Ipecac. Pt states he was angry at his command. He hit a PO2 last month and was reduced to E-3. Broke up with fiancé 8 months ago. Record contains other disciplinary problems.
         Exam: Unremarkable, appearance & speech - normal. Affect - "pissed off/angry." Cognitive treatments - within normal limits (Pt speaks Spanish).
         Course: Pt placed on ships ward for observation & put to work. Frequent complaints, "not fair, out to get me," concerning chores which were minor.
         Assessment: Personality disorder adjustment reaction.
         Plan: Psychological eval in Subic for fitness for duty.
         Released 27 May 1988 to NavHosp Subic Bay

880528:  Admitted to Naval Hospital Subic Bay with the diagnosis of Adjustment Disorder R/O Personality Disorder.
         HOSPITAL COURSE: Following pt's admission to a general medical/surgical ward, he was afforded individual supportive, insight and group psychotherapy. He was placed on Sinequan 50 mg QHS. He was very active in group therapy and verbalized his desire to get out of the ship and possibly hurting himself if he returned back to the ship. While on the ward, his behavior was appropriate. He handled ward privileges fairly well. He spent most of his time on the ward in the solarium and at times interacted with other patients. He has a poor motivation to stay in the military service.
         DISPOSITION: He is seen as unsuitable for overseas/shipboard duties. He suffers from severe personality disorder. He is seen as a danger to himself based upon his statement to harm himself by jumping overboard if returned to the ship. Considering his severe personality and statements of self harm, his desire to get out of USN, administrative separation is strongly advised. In accordance with MILPERSINST 1910.1C he is transferred to TPU for expedient administrative separation from the USN.
         DISCHARGED 31 May 1988
880601:  Phonecon Between LNCS D_ (TPU Subic Bay) and Mr. L_ (NMPC-8322) on 1 Jun 88, granted authority to transfer Applicant to TPU Subic Bay for misconduct due to commission of serious offense and convenience of the government due to personality disorder.
880602:  TPU advises USS FORT FISCHER of Applicant's medical situation, and of NMPC's approval to transfer Applicant to TPU for separation processing and requested the USS FISHER forward the transfer TEMDU orders, pay record and personal effects to TPU.
880612:  CNMPC authorized USS FORT FISHER to transfer Applicant TEMDU to TPU Subic Bay for separation processing.
[ADMINISTRATIVE DISCHARGE PACKAGE NOT CONTAINED IN SERVICE RECORD.]

 880630:  Applicant discharged Under Honorable Conditions (General) by reason of Convenience of the Government due to a personality disorder.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 880630 under honorable conditions (general) 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 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).

Issues 1 and 2. The Applicant was diagnosed with a severe personality disorder by a competent medical authority on 880528. No other narrative reason more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation. The Applicant’s statements that he was denied his right to consult with counsel regarding his administrative separation are not sufficient to overturn the presumption of regularity in this case. A characterization of service of under honorable conditions (general) is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. T he Applicant’s service was marred by award of nonjudicial punishment (NJP) on one occasion for assault. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service. An upgrade to honorable would be inappropriate. Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident 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, to obtain veterans’ benefits, or for good conduct in civilian life, subsequent to leaving the service. Relief not warranted.

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. The Naval Military Personnel Manual, (NAVPERS 15560A, Change 5, effective
15 Jun 87 until 10 Jan 89), Article 3620200, SEPARATION OF ENLISTED PERSONNEL FOR CONVENIENCE OF THE GOVERNMENT.
B . NAVOP 013/87 (CNO 201614ZFEB87) Delegated authority to Special Court-Martial Convening Authorities (SPCMCA's) to administratively separate enlisted members in certain circumstances. Authority was delegated for separation of enlisted members with Honorable, General, or Entry Level discharges for the following reasons where member does not object to the separation.

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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