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NAVY | DRB | 2003_Navy | ND03-00483
Original file (ND03-00483.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND03-00483

Applicant’s Request
The application for discharge review was received on 20030130. The Applicant requests the characterization of service received at the time of discharge be changed to entry level separation or uncharacterized and the reason for the discharge be changed to Entry Level Separation. The Applicant requests a personal appearance hearing before the board in the Washington National Capital Region. The Applicant listed a civilian counsel as the representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040128. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service and the reason for discharge was discovered by the NDRB. The Board’s vote was unanimous that the character and reason for discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“1. Whether Applicant’s severe mental illness should have been the basis for an uncharacterized entry level separation.”

Additional issues submitted by Applicant’s counsel/representative (Civilian Counsel):

“1. I, M_ R_ O_ (Applicant), (social security number deleted) (hereafter “Applicant”), hereby respectfully request that:

a. My other than honorable discharge be upgraded to “uncharacterized.”
and

b. My reason for separation be changed to “entry level separation.””
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Supplemental statement of Applicant provided by civilian counsel, undated
Applicant’s DD Form 214 (Member 1 and 4)
Ten pages from Applicant’s service record
Mental Health Services evaluation, dated February 19, 2002 (4 pages)
Psychological examination, dated October 23, 2002 (8 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     011031 - 011126  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 011127               Date of Discharge: 011218

 Length of Service (years, months, days):

         Active: 00 00 22
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 33

 Highest Rate: SR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF*                          Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: None

* No Marks Found

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

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

 Chronological Listing of Significant Service Events :

011130:  Recruit Mental Health: Assessment: Axis I: Alcohol dependence, EPTE, cannabis dependence, EPTE. Axis II: Antisocial personality disorder, EPT with paranoid features. Recommendation: Entry level separation due to disqualifying psychiatric condition.

011204:  Naval Hospital, Great Lakes, IL ward 5: Diagnoses: Axis I: Bipolar I disorder, current episode manic, alcohol abuse, cannabis abuse. Axis II: Antisocial personality disorder with paranoid features.
011205:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of by reason of defective enlistment and induction due to erroneous enlistment as evidenced by alcohol dependence, cannabis dependence, an antisocial personality disorder and a bipolar I disorder and misconduct due to the commission of a serious offense as evidenced by VUCMJ, Article 91: failure to obey a lawful order from a CPO; failure to obey a lawful order from a PO1; VUCMJ, Article 128: unlawfully strike a PO1 by kicking him in the leg; unlawfully strike a PO2 by headbutting him, unlawfully striking a SR punching him in the ribs; unlawfully strike a SR by kicking him in the groin.
011205:  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.
011207:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to erroneous enlistment as evidenced by alcohol dependence, cannabis dependence, an antisocial personality disorder and a bipolar I disorder and misconduct due to the commission of a serious offense as evidenced by VUCMJ, Article 91: failure to obey a lawful order from a CPO; failure to obey a lawful order from a PO1; VUCMJ, Article 128: unlawfully strike a PO1 by kicking him in the leg; unlawfully strike a PO2 by headbutting him, unlawfully striking a SR punching him in the ribs; unlawfully strike a SR by kicking him in the groin.

011207:  Commander, Naval Training Center 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 20011218 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: Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the Applicant’s enlistment. While he may feel that his mental illness was a contributing factor, it does not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service. His service record is marred by four specifications of assault. An upgrade would be inappropriate. Relief denied.

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, will change the reason for discharge if such a change is warranted. The summary of service clearly documents that misconduct due to commission of a serious offense was the reason the Applicant was discharged. No other Narrative Reason for Separation could more clearly describe why he was discharged. To change the Narrative Reason for Separation would be inappropriate. Relief denied.

There 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, a substance-free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.

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 31, dated 20 Feb 01, effective 25 Jan 01 until 21 Aug 02, Article 1910-142 [formerly 3630605]. SEPARATION 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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