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NAVY | DRB | 2003_Navy | ND03-00677
Original file (ND03-00677.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND03-00677

Applicant’s Request
The application for discharge review was received on 20030314. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions and the reason for the discharge be changed. The Applicant requests 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 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 was discovered by the NDRB. The Board’s vote was unanimous that the character and narrative reason 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 stated
Applicant’s issues, as stated on the application:

“1. I was issued an Other Than Honorable Discharge due to misconduct. I now believe the discharge was unjust because I understand now that the reason I was having so many problems in service and the reason for misconduct and behavioral problems was due to a mental disorder that developed in service. I was not aware of having a mental disorder prior to entering service and as I recall I thought I was having extreme difficulty adjusting to military life and that I always experienced personality conflict with superiors and peers. I was seen by a military Psychiatrist whose evaluation was that I should not remain in service. As a result of being misdiagnosed, I was given an Other Than Honorable Discharge due to misconduct. Since I left service personal problems continued until the year 2001, at such time I sought medical help. I have been seeing a private physician who had diagnosed me with having a mental disorder. Medical records to support my application can be obtained from Kaiser Permanente Medical Program, (address deleted). I cannot obtain the records because they contain psychiatric information about me. As a result I believe my discharge should be upgraded and that the reason for discharge be changed to “for medical reasons.”
Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     900615 - 900723  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 900724               Date of Discharge: 920601

 Length of Service (years, months, days):

         Active: 01 09 27
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 32

 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: 3

*No Marks Found in the service record.

 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 :

910401:  NJP for violation of UCMJ, Article 86 (3 specs.): failed to go at 0705 and 1230, 910315, and 1230, 910318.
Award: Forfeiture of $300.00, 15 days restriction and extra duty. Not appealed.
Undated:         Retention Warning: Advised of deficiency (Imposition of CO’s NJP on 910401 for UA, 3 specs.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
910516:  NJP for violation of UCMJ, Article 134: false official statement on 910413.
Award: Forfeiture of $200.00, 15 days restriction and extra duty. Not appealed.
910819:          NJP for violation of UCMJ, Article 92 (2 specs): willful dereliction of duty by not wearing headphones as a lookout, and sleeping while on watch on 910717.
Award: Forfeiture of $300.00 per month for two months, 30 days restriction and extra duty. Not appealed.
911030:  Summary Court-Martial.
 Violation of UCMJ, Article 86 (4 specs.): failure to go to appointed place of duty.
Violation of UCMJ, Article 134: breaking restriction.
         Sentence: Confinement for 25 days, forfeiture of $376.00.
                   CA action: Approved on 911031.

 911127:  NJP for violation of UCMJ, Article 134: wrongfully alter military ID card; violation of UCMJ, Article 91: willful disobedience of a lawful order on 911121.
Award: Forfeiture of $300.00 per month for two months, 30 days restriction and extra duty. Not appealed.
920213:  NJP for violation of UCMJ, Article 86 (4 specs): absent from appointed place of duty on 920124 and 920128, from 0730, 920203 to 0830, 920204, and from 0730, 920205 to 0730, 920207.
Award: Forfeiture of $200.00, 20 days restriction and extra duty. Not appealed.
920213:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
920218:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
920227:  NJP for violation of UCMJ, Article 91 (5 specs.): disrespectful in deportment on 920219; disrespectful in language on 920220; willful disobedience of a lawful order on 920220, 920224, and 920227.
         Award: Three days confinement on bread and water. Not appealed.
920304:  NJP for violation of UCMJ, Article 86: failure to go to appointed place of duty on 920301; violation of UCMJ, Article 91 (3 specs.): willful disobedience of a lawful order; violation of UCMJ, Article 92: failure to stand a proper watch.
Award: Forfeiture of $300.00 for two months, 90 days restriction and extra duty. Not appealed.
920311:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed a serious offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

920325:  NJP for violation of UCMJ, Article 86 (5 specs): absent from appointed place of duty.
Award: Forfeiture of $392.00 for two months ($100.00 per month suspended for two months), three days confinement on bread and water. Not appealed.
920401:  Vacate suspended punishment from NJP of 920325.

 920402:  NJP for violation of UCMJ, Article 92: disrespectful in language toward a petty officer on 920328, violation of UCMJ, Article 134: wrongfully communicate indecent language on 920328.
         Award: Three days confinement on bread and water. Not appealed.
920408:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and due to a pattern of misconduct.

920504:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

920504:  NJP for violation of UCMJ, Article 86: UA from 1630, 920414 to 0730, 920415; violation of UCMJ, Article 89: on 920422 was disrespectful to Lt H_, by saying to her, “Cause I didn’t get in until this morning. Cause I got drunk last night. I ain’t being smart, that’s just the way it is. Cause I was hungry and I went to chow,” and contemptuously rolling his eyes up while Lt H_ was talking to him.
Award: Forfeiture of $392.00 for two months, 45 days restriction and extra duty. Not appealed.
920520:  Summary Court-Martial.
 Violation of UCMJ, Article 89: On 920504, disrespectful to Cdr. H_ by saying to her, “That you all are still fucking me up the ass, ma’am,” or words to that effect.
         Sentence: Confinement for 18 days.
         CA action: Approved on 920528. Sentence will include days of pre-trial confinement.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19920601 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. It is the Applicant’s responsibility to provide documentation to support the Applicant’s issues. The Board found no indication in the service record or documentation provided that the Applicant’s misconduct is due to an alleged medical condition. A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor. The Applicant’s service was marred by award of nonjudicial punishment (NJP) on ten occasions and two summary courts-martial. 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. No other narrative reason other than commission of a serious offense more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation. Relief denied.
The Applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. 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, or 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. Naval Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until
04 Mar 93, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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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