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NAVY | DRB | 2004_Navy | ND04-00558
Original file (ND04-00558.rtf) Auto-classification: Denied


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

ex-RMSN, USN
Docket No. ND04-00558

Applicant’s Request
The application for discharge review was received on 20040220. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review. The Applicant listed Vietnam Veterans of America as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041008. 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, 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. “I was erroneously diagnosed with a “Personality Disorder with anti-social traits”. Four months after my discharge I was diagnosed with “Bipolar Disorder or Manic Depression. (See attached report from Linden Oaks Hospital).”

Additional issues submitted by Applicant’s representative Vietnam Veterans of America:
2. “During my 18 months in the US Navy I was a good sailor until my illness (psychological problem) started in the Navy. These psychological problems affected my abilitary to serve. This mental condition that I have affected my service and the job that I was doing in the Navy. I was given several NJP article 15 that I believe are related directly to my mental breakdown.”

3. “I believe that the military erroneously diagnosed me with a personality disorder when in fact the condition was bipolar as diagnosed by Dr. W_ W_ in Mar 1999. Also VAMC doctor also diagnosed bipolar. It was the bipolar condition that caused me to have problems in the Navy and to have a pattern of misconduct.”

4. “I believe that the type of discharge I received was too harsh. I believe that a OTH discharge was too severe for what I did in the Navy. I should have gotten at least a General Under Honorable Discharge.”

5. “If the Navy Discharge Review has ever upgraded any other discharge for worse than what I did, then I am requesting the same consideration as I believe that the Navy could grant me with an Honorable or at least a General Under Honorable.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214 (Copy 4)
Applicant’s Letter to NDRB addressing the issues, undated (2 copies)
Letter of Reference from father, J_ W_, undated (2 copies)
Letter of Reference from sister, M_ C_ G_, undated
Letter of Reference from M_ N_, dated May 15, 2002
Letter of Reference from S_ D_, dated May 1, 2002
Applicant’s discharge package (7 pages)
Applicant’s service records (5 pages)
 Applicant’s medical records (99 pages)
PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USN (DEP)      970130 - 970304  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 970305               Date of Discharge: 981002

 Length of Service (years, months, days):

         Active: 01 06 28
         Inactive: None

 Age at Entry: 23                          Years Contracted: 4

Education Level: 14                        AFQT: 65

 Highest Rate: RM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF*        Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: AFEM

 Days of Unauthorized Absence: None

 *No marks found in Applicant’s service record
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 :

971129:  Applicant went on unauthorized absence at 0600, 971129 and through neglect missed ship’s movement.
971129:  Applicant returned onboard the USS ABRAHAM LINCOLN CVN-72 at 1200, 971129.
971129:  Applicant went on unauthorized absence from unit 0600, 971129.

971129:  Applicant returned from unauthorized absence at 0900, 971129.

 971201:  Applicant missed sailing of the USS ABRAHAM LINCOLN CVN-72, from San Diego 971129 in route to Pacific Ocean. RMSN W_ (Applicant) had knowledge of the time schedule for ship’s movement.
971211:  NJP for violation of UCMJ, Article 86: Unauthorized absence from unit from 0600, 971129 to 0900, 971129; violation of UCMJ, Article 87: Through neglect miss movement on 971129.
         Award: Forfeiture of $100.00 per month for 1 month, restriction for 45 days and extra duty for 5 days, reduction to E-3 (suspended for 6 months). No indication of appeal in the record.

971213:  Retention Warning: Advised of deficiency (Violation of the UCMJ, Article 86: Unauthorized absence from appointed place of duty), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

980804:  Retention Warning: Advised of deficiency (Violation of UCMJ Article 86: Fail to go to appointed place of duty), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

980804:  NJP for violation of UCMJ, Article 86 (2 Specs): Spec1: On or about 0130, 980722, fail to go to appointed place of duty, to wit: work center.
 Spec 2: On or about 980723, fail to go to appointed place of duty, to wit: General Quarters station.
         Award: Forfeiture of $539.00 per month for 1 month, restriction and extra duty for 45 days, reduction to E-3. No indication of appeal in the record.

980812:  USS ABRAHAM LINCOLN (Med Dept – Psychology): Applicant diagnosed with AXIS I: No diagnosis and AXIS II: Personality Disorder not otherwise specified with borderline/antisocial traits.
The sailor is responsible for his own behavior and competent to manage his affairs. However, his character disorder may impair his ability to function effectively in the military service. He does not require and will not benefit from psychiatric hospitalization.
The psychiatrist recommended that the Applicant does not require and will not benefit from psychiatric hospitalization. Due to its chronic and pervasive nature, his disorder is not suitable for treatment in a military setting and significant changes in his patterns of behavior are not likely in the future. The sailor is judged not be at risk of imminent self-harm or harm to others or property. Therefore, in accordance with MILPERSMAN 1910-122 a further trial of service is required. The sailor’s chain of command is advised to formally counsel him on the necessity of conforming his attitudes and behavior to acceptable standards, and this counseling should be documented in his service record. This documentation should note the following specific behaviors that are unacceptable.
1) The sailor has burned his forearms with a cigarette on numerous occasions, further acts of self-mutilation are deemed to be inappropriate and grounds for separation.
2) The sailor has had three separate disciplinary actions against him (missing ship’s movement, late to quarters, sleeping through GQ), future disciplinary problems may be grounds for separation.
Future failure of satisfactory performance constitutes sufficient cause for administrative separation by local command on the grounds of unsuitability for military service in accordance with MILPERSMAN 3620225, without recourse to further mental health evaluation, hospitalization, or medical board.
980824:  Retention Warning: Advised of deficiency (Based on your psychological evaluation on 980812 you are hereby warned/cautioned that any further self-mutilating acts on your part will not be tolerated), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
980827:  USS ABRAHAM LINCOLN (Med Dept – Psychology): Applicant diagnosed with Personality Disorder. On this date RMSN W_ (Applicant) had to be emergency evaluated in medical because of suicidal threats. During the course of the interview blood was noted on his knuckles and chest. RMSN W_ (Applicant) had a verbal conflict with one of his supervisors at his work center. He became angry and had thoughts of striking the supervisor and of suicide. However, he did not take any action to follow through with these thoughts. RMSN W_ (Applicant), because of his angry feelings, did strike a wall that resulted in the injury to his hand. In addition, he took a box cutter and made a four inch cut across his right chest area.
         These behaviors by RMSN W_ (Applicant) (cutting his chest with a box cutter and striking a wall to the point of injury to his knuckles) are deemed unacceptable behaviors in his attempt to cope with stress and are felt to be in violation of the page 13 entry that he had been previously given. It is recommended that administrative/disciplinary action be taken against RMSN W_ (Applicant) in regards to his behavior.
 The psychiatrist recommended separation based on a personality disorder of such severity as to render the Applicant incapable of serving adequately in the naval service. Applicant is not deemed to be at imminent risk of harm to self or others, he is considered to be an on-going liability in which there will be little, if any, behavioral changes that would make him an asset to the command. His behavior is the result of a long-standing character disorder and continued problems are deemed highly probable.
980908:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of convenience of the government on the basis of a personality disorder as evidenced by medical evaluation conducted on 980812 and 980827 by B_ H_, PH. D., Psychologist; by reason of misconduct due to a pattern of misconduct and by reason of misconduct due to the commission of a serious offense as evidenced by all punishments under the UCMJ in your current enlistment.
980908:  Applicant advised of his rights, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
980916:  Commanding Officer recommended discharge under other than honorable conditions by reason of convenience of the government on the basis of a personality disorder, misconduct due to the commission of a serious offense and misconduct due to a pattern of misconduct. Commanding Officer’s comments: (verbatim): RMSN W_ (Applicant) is incapable of adhering to the rules and regulations of the Navy and this Command. He is simply unwilling to conduct himself in a manner conducive to good order and discipline. RMSN W_ (Applicant) has been diagnosed with a personality disorder which has impaired his ability to function effectively in the military service. Per his medical evaluation, RMSN (Applicant) is not suitable for continued military service as evidenced by his escalating threats of self-harm. Due to RMSN W_ (Applicant)’s misconduct due to commission of a serious offense, misconduct due to pattern of misconduct and personality disorder, I strongly recommend that he be separated from the naval service with an Other Than Honorable Discharge.

980919:  COMCRUDESGRU THREE 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 19981002 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).

Issues 1-5: 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 health problems were contributing factors, they do 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. A characterization of service of under other than honorable condition is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. The Applicant’s service record is marred by award of nonjudicial punishment (NJP) on two separate occasions for violating the UCMJ, Articles 86 and 87 thus substantiating the misconduct .

The documentation and statements provided by the Applicant were not sufficient to overturn the presumption that the Applicant was properly diagnosed with a personality disorder. The Applicant was diagnosed with a personality disorder by a competent medical authority on 980812. The evidence reviewed did not persuade the Board that this diagnosis and subsequent administrative separation was improper or inequitable. 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.

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 15560C), Change 18, effective
12 Dec 97 until 29 March 2000, 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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