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NAVY | DRB | 2002_Navy | ND02-01162
Original file (ND02-01162.rtf) Auto-classification: Denied


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

ex-AR, USN
Docket No. ND02-01162

Applicant’s Request
The application for discharge review, received 020814, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The Applicant requested a personal appearance discharge review before a traveling panel closest to Shreveport, LA. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter to the Applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area. The NDRB also advised the Applicant that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030501. 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 - Pattern of Misconduct, authority: NAVMILPERSMAN, Article 3630600.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. My discharge was improper because while I was in the Navy, did not take medication to treat ADD (Attention Deficit Disorder). I was diagnosed with ADD in 1978 by Dr. M_ C_ of Dallas, TX. I remained on medication until 1986, when I rebelled against my treatment, as most teenagers do. I began family counseling by A_ M_ MA LPC, (address and telephone number deleted) and later was treated and followed by Dr. C_ D_, a psychiatrist. His address & # are (address and telephone number deleted). Presently, I am being treated by Dr. R_ J_, (address and telephone number deleted). I can substantiate with scientific research at a later date if needed. It has been shown that young men with ADD that are not treated have numerous accounts of misconduct, including alcohol and drug abuse, tardiness, violence, and unreliability.

I began seeing Mr. M_ and Dr. D_ after my discharge from the Navy. They helped me to realize the importance of ongoing treatment for my ADD.

Also, while in the Navy, I was seen and evaluated by D. O. T_ on February 25, 1992. He made 6 different recommendations for treatment and counseling, which were not carried out by my Commanding Officer. T_ believed that with out the completion of the recommended program, my "potential for productive service" was not positive. (Please see Document #8 for a copy of T_'s evaluation dated February 25, 1992.)

It is because I was not treated for Attention Deficit Disorder while in the Navy, that I am requesting an upgrade of my discharge. I believe my untreated ADD was the main cause of my misconduct while I was in the Navy.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant 's DD Form 214
 Applicant 's birth certificate
List of schools attended, dated May 7, 2002
Letter from Applicant’s mother, dated May 7, 2002
Police record check, Shreveport Police Department, dated May 31, 2002
Letter from Applicant regarding his employment, dated May 28, 2002
Three pages from Applicant's service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     891208 - 900311  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 900312               Date of Discharge: 920501

 Length of Service (years, months, days):

         Active: 02 01 20
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 11 GED           AFQT: 53

 Highest Rate: AA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.93 (3)    Behavior: 2.73 (3)                OTA: 3.06

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

900313:  Applicant briefed on Navy's policy on drug and alcohol abuse.

 911220:  NJP for violation of UCMJ, Article 111: Operate a vehicle, to wit: a Jeep while impaired by alcohol, in a manner by driving at an excessive speed on 911117.
         Award: Forfeiture of $250 per month for 2 months, restriction and extra duty for 30 days, reduction to AR. Reduction suspended for 6 months. No indication of appeal in the record.
911220:  Retention Warning from Tactical Electronic Warfare Squadron Thirty-Three: Advised of deficiency (CO's NJP of 20 December 1991, violation of the UCMJ, Article 111.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920127   Applicant acknowledged that his Enlisted Performance Evaluation Report for the period 91FEB01 to 92JAN31 contained derogatory contents.

920225:  CAAC evaluation: Applicant appears psychologically dependent on alcohol. Recommend Level III treatment. Medical officer screening to confirm/rule out alcohol dependency. [Extracted from supporting documents provided by the Applicant .]

920227:  Vacate suspended reduction to AR awarded at CO's NJP dated 911220 due to continued misconduct.

920309:  Medical evaluation: Applicant found to be an alcohol abuser. Recommended for outpatient counseling at CAAC (Level II).

920310:  NJP for violation of UCMJ, Article 86: Fail to go at the time prescribed to appointed place of duty, violation of UCMJ, Article 92: Failure to obey lawful order by wrongfully failing to be at recall without informing the ASOO, violation of UCMJ, Article 112: Drunk on duty as flight line security watch.
         Award: Forfeiture of $300 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
920312:  NJP for violation of UCMJ, Article 92: Failure to obey lawful order by leaving NAS Key West without permission, violation of UCMJ, Article 134: Break restriction.
         Award: Forfeiture of $392 per month for 2 months, restriction for 45 days. Forfeiture to begin after forfeiture from CO's NJP of 920310 completed. No indication of appeal in the record.
920320:  Tactical Electronic Warfare Squadron Thirty Three notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by three separate nonjudicial punishments and misconduct due to commission of a serious offense as evidenced by nonjudicial punishment for violation of the UCMJ, Articles 92, 111, and 112.
920320:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
920325:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due a pattern of misconduct and misconduct due to commission of a serious offense. Commanding Officer’s comments (verbatim): [AR M. T. L_ has committed misconduct due to commission of serious offenses and misconduct due to a pattern of misconduct. AR L_’s performance at this command has been totally unacceptable. He was taken to Captain’s Mast in December 1991 for driving under the influence and was given a suspended bust to give him the opportunity to improve his performance. In February 1992 he was U/A from watch and when he showed up for watch, he was drunk. He was taken to Captain’s Mast again and put on restriction. Two days later, he broke restriction and was seen downtown by his Division Officer. He was taken to Captain’s Mast for the third time and put on the Naval Air Station’s restriction where he was under constant supervision 24 hours a day. After only one week, the base Master-at-Arms contacted my Legal Officer to inform the command that AR L_ had broken their restriction and was disrupting other restrictees. AR L_ has demonstrated no desire to conform to the standards expected of him and has absolutely no potential for future productive service.
AR L_ does not object to this separation. I strongly recommend this member be discharged from the military service and that his discharge be characterized as under Other Than Honorable conditions.]
920423:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

Note: Applicant’s medical record was not available for review. National Personnel Records Center (NPRC) reports Applicant’s medical record has been loaned to the Department of Veteran’s Affairs (VA).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 920501 under other than honorable conditions for misconduct due to a pattern of misconduct (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 claims his discharge was improper, he believes that his untreated Attention Deficit Disorder (ADD) was the main cause of his misconduct while he was in the Navy. The Board notes the fact that the Applicant states he was diagnosed with ADD prior to enlisting in the Navy. While the Applicant’s medical record was not available for the Board’s review, the Applicant’s Report of Medical History and Report of Medical Examination at the time of enlistment is included as part of his official service record. The Board further notes that the Applicant did not report his history of ADD in either of these documents. After careful review of the available documentation the Board discerned no impropriety or inequity in the Applicant’s discharge. The Applicant’s summary of service clearly documents the pattern of misconduct that earned the Applicant his other than honorable characterization of service. A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure of that expected of a sailor. T he Applicant’s conduct, which forms the primary basis for determining the character of service, reflects his repeated disobedience of the orders and directives that regulate good order and discipline in the naval service, and falls far 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. The Applicant’s discharge characterization accurately reflects his service to his country. An upgrade to under honorable conditions would be inappropriate. Relief denied.

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. 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 and that his evidence of post service accomplishments was found not to mitigate the misconduct for which he was discharged. 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, effective 15 Aug 91 until
04 Mar 93), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – A PATTERN OF MISCONDUCT.

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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