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NAVY | DRB | 2003_Navy | ND03-00836
Original file (ND03-00836.rtf) Auto-classification: Denied


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

ex-DCFA, USN
Docket No. ND03-00836

Applicant’s Request
The application for discharge review was received on 20030407. The Applicant requests the characterization of service received at the time of discharge be changed to general/ under honorable conditions. The Applicant requests a documentary record discharge review. The Applicant listed the American Legion as the representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington, D.C. area. Applicant did not respond.

Decision
A documentary discharge review was conducted in Washington, D.C. on 20040408. 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 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. “At this time, I respectfully request that the Board consider an up-grade of my discharge from the US Navy to General Under Honorable Conditions. I’m diagnosed with a Bi Polar mental condition that I feel had its early onset while on active duty in the US Navy. With this condition I was no longer able to perform my duties and to conform to or adjust to military life. My Doctors have concluded also after review of my Military medical records that my current Bi Polar condition had its early on set while on active duty in the US Navy. I request a thorough review of an medical records and other relevant records in my case, and that I be given a favorable decision based on that review.

Thank you”

Additional issues submitted by Applicant’s representative (American Legion):

 “2 (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Appointment of Veterans Service Organization as claimant’s representative, dated March 14, 2003
Letter from Applicant to Commanding General (3 pages)
Statement in support of claim, dated March 14, 2003
Applicant’s DD Form 214
Stairways Behavioral Health, consent for release of confidential information, dated February 10, 2003
Letter from Stairways Behavioral Health and, dated February 5, 2003
Psychiatric exam and evaluation, dated January 9, 2003
Pennsylvania Department of Public Welfare, Employability assessment form, dated April 1, 2001
Letter from Lake Erie Counseling Associates, undated
Thirty-three pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     871029 - 871119  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 871120               Date of Discharge: 900227

 Length of Service (years, months, days):

         Active: 02 03 08
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 11 GED           AFQT: 62

 Highest Rate: DCFN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.90 (4)    Behavior: 2.85 (4)                OTA : 2.95

 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 OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

871121:  Applicant briefed on Navy's policy of drug and alcohol abuse.
880426:  Applicant briefed on Navy's policy of drug and alcohol abuse.
880531:  Applicant to unauthorized absence on 0715-0745, 880531.

881113:  Applicant to unauthorized absence on 0715-1230, 881113.

891023:  Applicant to unauthorized absence on 0715-0923, 891023.

 891114:  Drug and Alcohol Abuse Report: Inhalants abuse, less than monthly, ashore off duty. Command/supervisor 891026. CAAC found Applicant not dependent and recommended separation via VA hospital. Commanding Officer recommended retention and Level I treatment. Comments: Member has a history of poor work performance. Member has low potential for further naval service.

891114:  Retention Warning: Advised of deficiency (Failure to pay just debts and unauthorized absence, performance of assigned tasks and assigned tasks and duties in a manner that is not contributory to unit readiness.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

891214:  NJP for violation of UCMJ, Article 86: Unauthorized absence 0715-0830, 891130, violation of UCMJ, Article 92: (1) Failure to obey lawful order by not turning is base decal and removing his motorcycle from SUBASENLON Groton, CT on 891129, (2) Failure to obey lawful order by wrongfully driving motorcycle on base on 891212, violation of UCMJ, Article 111: Operate a vehicle on 891212, to wit: a Harley motorcycle while drunk and in a reckless manner by engaging police in pursuit and ignoring traffic stop signs.
         Award: Correctional custody for 30 days, reduction to DCFA. No indication of appeal in the record.
891219:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by violation of UCMJ Article 111.
891219:  Applicant advised of 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.
900105:  ETOH Evaluation: P: Level III, Residential Rehabilitation Program. Other: feel pt is dependent on ETOH, 2 DWI, admits to daily drinking when money available, blowing majority of pay check on ETOH. Regardless of successful Rx – his pre-existing personality disorder will remain and pt will likely be a behavioral/discipline problem.
900108:  Drug and Alcohol Abuse Report: Alcohol abuse, 4-7 times a week, ashore off duty. Military police 891212. CAAC found Applicant not dependent and recommended separation via VA hospital. Physician found Applicant dependent and recommended separation via VA hospital. Commanding Officer recommended separation via VA hospital. Comments: Member has a history of poor work performance. Member has low potential for further naval service.

900116:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

900202:  CNMPC 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 19900227 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 condition diagnosed after his discharge was a contributing factor, the evidence of record does not indicate that he was not responsible for his actions. Accordingly, the Board determined that the Applicant’s post-service diagnosis of Bi-polar disorder 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. 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. E vidence 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. At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.

For the Applicant’s information, he may petition the Board for Correction of Naval Records (BCNR) for a change to his records if he believes that his mental condition was incurred while on active duty and that he should have been retired by reason of physical disability. The NDRB does not have the authority to effect this change. A DD Form 149 is enclosed for Applicant’s use to petition the BCNR.

 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 documentation to support any claims of post-service accomplishments or any other evidence related to his discharge 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 15560A), Change 8, effective
21 Aug 89 until 14 Aug 91, 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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