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NAVY | DRB | 2002_Navy | ND02-01100
Original file (ND02-01100.rtf) Auto-classification: Denied


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

ex-AO3, USN
Docket No. ND02-01100

Applicant’s Request
The application for discharge review, received 020801, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a documentary record discharge review. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030424. 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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).




PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

 1. Dear Sir or Ma'am.
I am requesting a review of my discharge from the US Navy in hopes of having it upgraded to an honorable discharge. The following will be a brief explanation of my service in the Navy and reasons for which I feel the discharge I received was unjust.
For the 3 years and 4 months I served in the Navy I received excellent evaluations, in which resulted in my promotion to Petty Officer 3rd class in less then a year of service. In June of 1999, I was going through a devastating divorce, which resulted in my inappropriate actions that led to an NJP for Indecent Language and Disorderly Conduct, which was suspended. Although I had made this mistake I persevered and continued to receive excellent evaluations and received the Sailor of the Month Award.
In April of 2000 I was diagnosed with a medical condition, Chronic Cluster Headaches. I began treatment and was undergoing various test for my illness, which resulted in my change of status to "unfit for sea duty" by a Naval Medical Doctor. Coincidentally, at that time my command was about to make another 6-month deployment with USS George Washington. I gave my medical "chit" to my command, which stated my current status as unfit for sea duty, at which time I was accused of lying about my condition and was given a direct order from my superior to report for full duty for this deployment on the USS George Washington.
I followed my orders and reported for duty for my deployment. During this time on ship I did not receive proper treatment for my headaches, which not only continued but also were exacerbated by the work I was ordered to do and the harassment from my command about my medical condition. My cluster headaches got so severe that I was consuming an unhealthy amount of pain medication at times, which resulted in an evaluation by a psychiatrist by order of my command. At the time of this evaluation I described my medical condition and the lack of medical treatment, and how my command harassed me because of it. I asked to be transferred to a new command, at which time it was suggested that a separation from the Navy would be a better alternative. I decided to take the separation from the Navy with the understanding, from my command, that I would receive an Honorable Discharge and receive all my benefits.
On November 22, 2000, as ordered, I picked up my discharge papers, at which time, I realized that my command decided to change my discharge from an Honorable to a General Under Honorable. This change in my discharge was apparently done because of the NJP that took place more than a year prior, which did not affect my high evaluations, my performance, and additional responsibilities as a supervisor given to me by this command. There were also many other discrepancies on my discharge papers such as, my current address, home of records address, and the duty station I was currently at and being separated from. I attempted to dispute all of these discrepancies at that time, but was ordered by the OIC of TPU to sign the papers because it was near the end of the day and the holiday liberty was about to begin and, therefore, I could not do anything about this matter, at that time, because my discharge date was that day. I was encouraged by the OIC of TPU to dispute the discharge that I received and was told it was, unjustly given."
I would have never accepted to be separated from the Navy if I was not promised an Honorable Discharge, especially due to the fact I only had 8 months left on my contract.

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Certificate of Appreciation (Recruiting)
Honorary Navy Recruiter Certificate dated October 26, 1997
Letter of Commendation
Junior Rampager of Month Designation Letter dated March 26, 2000
Evaluation Reports & Counseling Records (8 pages)
Commanding Officer's Administrative Separation Letter dated November 10, 2000 (2 pages)
Administrative Separation Processing Notification Procedures/Statement of Awareness dated November 5, 2000 (2 pages)
Medical Document dated October 25, 2000
Page 13 dated June 3, 1999
Administrative Remarks (CO's NJP) dated June 4, 1999

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     970418 - 970729  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 970730               Date of Discharge: 001122

 Length of Service (years, months, days):

         Active: 03 03 23
         Inactive: None

 Age at Entry: 24                          Years Contracted: 4

Education Level: 12                        AFQT: 32

 Highest Rate: AO3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.85 (7)    Behavior: 3.42 (7)                OTA: 3 .41

 Military Decorations: None

 Unit/Campaign/Service Awards: ERM, AFSM, SSDR (2), AFEM, MUC

 Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

 Chronological Listing of Significant Service Events :

990603:  Retention Warning: Advised of deficiency (Indecent language, drunk and disorderly), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
990604:  NJP for violation of UCMJ, Article 134: (2 Specification), Indecent Language; Drunk and Disorderly.
         Award: Forfeiture of $626.00 pay per month for 1 month (suspended for 6 months), restriction and extra duty for 45 days, reduction to E-3 (suspended for 6 months). No indication of appeal in the record.

001025:  Psychiatric evaluation indicates Applicant was diagnosed with a personality disorder. The attending clinical psychologist advised expeditious separation based on a longstanding character disorder. Although not currently suicidal, he (Applicant) presents a risk as long as he remains on duty.

001105:  Applicant notified of intended recommendation for discharge by reason of convenience of the government and misconduct due to the commission of a serious offense. Applicant informed at this time that the least favorable characterization of service possible is GENERAL (Under Honorable Conditions). Applicant initialed documentation stating these conditions.
001105:  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.
001110:  Commanding Officer recommended discharge by reason of convenience of the government - personality disorder and misconduct commission of a serious offense. Commanding Officer’s comments (verbatim): [Petty Officer C_ (Applicant) manifests a disorder of character, behavior and adaptability that is of such severity as to preclude adequate military service. He is unreliable, his performance has degraded and I have lost total trust and confidence in his ability to productively perform in a military environment.]

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 001122 with a discharge characterization of general (under 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: The Applicant believes that the discharge he received was unjustly given. Although the Applicant was diagnosed with a personality disorder, and was recommended for separation from the Navy due to the severity of his personality disorder, he was appropriately processed for a misconduct discharge due to his commission of a serious offense, to wit: Indecent Language, which could have resulted in a Bad Conduct or Dishonorable Discharge if tried by court martial. The Board determined that the Applicant’s discharge is proper and equitable as issued. The Applicant’s service is equitably characterized as general (under honorable conditions) as type warranted. Even if the Applicant had been discharged for the personality disorder, a characterization of general (under honorable conditions) is still appropriate. A characterization of service of general (under honorable conditions) is warranted when significant negative aspects of a service member’s conduct or performance of duty outweigh the positive aspects of the service member’s military record. The Applicant’s summary of service is marred by award of non-judicial punishment (NJP). 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. After a complete review of the record, including the evidence submitted by the Applicant, the Board determined that the Applicant’s discharge was proper and equitable. An upgrade to fully honorable would be inappropriate. Relief denied.

The following is provided for the Applicant’s information: 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 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 30, dated 7 Nov 00, effective 30 Aug 00 until 24 Jan 01, 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 134, for indecent language, 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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