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NAVY | DRB | 2004_Navy | ND04-00742
Original file (ND04-00742.rtf) Auto-classification: Denied


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

ex-AME2, USN
Docket No. ND04-00742

Applicant’s Request
The application for discharge review was received on 20040331. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing discharge review before a traveling panel closest to Denver, Colorado. The Applicant listed Colorado Department of Veterans Affairs 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, also advised that the Naval Discharge Review Board (NDRB) does not travel, all hearings are held in the Washington National Capital Region.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041222. 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: GENERAL (UNDER HONORABLE CONDITIONS)/CONDITION, NOT A DISABILITY, authority: NAVMILPERSMAN, Article 1910-120 (formerly 3620200).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

1. “When I was confronted by my commanding officer, I was embarrassed and I smirked and he took my action as insubordination. later when I explained my actions he understood and that was the reason for non judicial punishment. I in my 5 years in the navy I always took note of what happened to others disciplinary wise and I never thought it would happen to me and I regret what I did. My goal is to get reinstated into the US Navy and continue my job as a aviation structural mechanic survival equipment.
Enclosed are letters of achievement and commendations during my navy career. I would like to have my discharge changed to honorable”.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Copy of Navy and Marine Corps Achievement Medal Certificate
Copy of Letter of Appreciation dated June 16, 1999
Copy of Letter of Appreciation Deliverance Letter dated January 9, 2001
Copy of Letter of Commendation Presentation Letter dated October 2, 2000
Copy of Performance Information Memorandum dated March 21, 2001
Copy of Letter of Commendation Deliverance Letter dated October 17, 2000
Copy of NAVPERS 1070/604 (Personnel Qualification Standards (PQS)
Copy of Meritorious Unit Commendation Citation

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     971229 - 980914  COG
         Active: USN                        980915 - 010116  HON

 Period of Service Under Review :
Date of Enlistment: 010117               Date of Discharge: 031118

 Length of Service (years, months, days):

         Active: 02 10 02
         Inactive: None

 Age at Entry: 22                          Years Contracted: 6

Education Level: 12                        AFQT: 57

 Highest Rate: AME2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.60 (5)    Behavior: 3.40 (5)                OTA: 3.20

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, GCM, SSDR(2), OSR(2), MUC, NAM

 Days of Unauthorized Absence: 21

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

GENERAL (UNDER HONORABLE CONDITIONS)/CONDITION, NOT A DISABILITY, authority: NAVMILPERSMAN, Article 1910-120 (formerly 3620200).

 Chronological Listing of Significant Service Events :

010117:  Reenlisted at AIRTEVRON ONE PAX RIVER, MD for 6 years.
030804:  Mental Health Evaluation by LCDR H___: Patient was taken to ER due to suicidal threats, member attempted suicide approximately 12 weeks prior, member said he didn’t want to die or hurt himself. Alcohol abuse seems to be the contributing factor, Summary: Axis I: R/O Alcohol Abuse, R/O Depressive, D/O NOS; Axis II: None.

030915:  Mental Health Evaluation by LT B____ .: Patient denied suicidal/homicidal ideation, hallucinations and delusions. There is no evidence of psychosis. Insight is poor. Impulse control is impaired when intoxicated. Judgment is questionable.
         Diagnosis: Deferred.
         Plan: Patient will follow-up with LT B_. He is able to distinguish right from wrong and is responsible for his behavior. He denies suicidal/homicidal ideation. He is low risk for self-harm. Patient is fit for full duty, but suitability is questionable. He is scheduled to begin alcohol treatment from 15 Oct to 07 Nov 2003.

030924:  Follow up to Mental Health Evaluation by LT B___ indicates there is no evidence of psychosis. Insight is poor, impulse control is impaired when intoxicated. Judgment is estimated to be mildly impaired, given his reported stress level and history.
         Diagnosis: Adjustment Disorder with Mixed Disturbance of Conduct and Paranoid Personality Traits.
 Plan: Patient is able to distinguish right from wrong and is responsible for his behavior. Patient denies suicidal/homicidal ideation. He is low risk for self-harm. He contracts for safety and has a clear and reasonable safety plan in the even that he should have any thoughts of self-harm. Patient is fit for full duty. Patient has no pressing mental health symptoms that can be addressed in therapy. His stressors stem from legal involvement. He agrees that counseling is not warranted at this time, but understands that he can call for follow-up should he feel the need.
031010:  Follow up Mental Health Evaluation by LT B____.
 Diagnosis: Adjustment Disorder with Mixed Disturbance of Conduct and Paranoid Personality Traits.
Plan: Recommended administrative separation by reason of Convenience of the Government due to a mental conditions (Adjustment Disorder) not constituting a physical disability per DOD Instruction 1332.38 and MILPERSMAN 1910-120. The member is not considered mentally ill and returns to full duty. The member’s condition impairs his ability to function effectively in the Naval environment and interferes with the member’s performance of duty. The member shows little likelihood of making a future positive contribution to the naval service. Additionally, there is a high probability that this member may become an unacceptable medical and administrative burden with behavior that may impede good order, efficiency, and cost-effective mission accomplishment. The member understands that this recommendation is subject to command approval. Patient is able to distinguish right from wrong and is responsible for his behavior. Patient is scheduled begin alcohol treatment from 15 Oct to 07 Nov 2003, but it should be noted that legal concerns take precedence over legal involvement. Patient’s DAPA should cancel treatment if there are unresolved legal issues that will prevent him from starting treatment on time.
031017:  Retention Warning: Advised of deficiency (Violation of UCMJ, Article 86, Absence without leave (2 Specs); Violation of UCMJ, Article 92, Failure to obey order or regulation; Violation of UCMJ, Article 91, Insubordinate conduct toward a Senior Petty Officer), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
031017:  NJP for violation of UCMJ, Articles 86, 91, 92:
Violation of UCMJ, Article 86 (2 Specs):
Specification 1: Did on or about 0925, 031008 without authority absent himself from his place of duty at which he was required to be, to wit: Strike Fighter Squadron ONE NINE FIVE Assistant Duty Officer watch, located at Strike Fighter Squadron ONE NINE FIVE, and did remain so absent until on or about 1520, 031008;
 Specification 2: Did on or about 0700, 031009 without authority absent himself from his unit, to wit: Strike Fighter Squadron ONE NINE FIVE located at Naval Air Facility, Atsugi, Japan, and did remain so absent until on or about 0915, 031009.
Violation of UCMJ Article 91: Insubordinate conduct, having received a lawful order from Aviation Structural Mechanic (Safety Equipment) First Class Petty Officer P__ S___, a senior petty officer, then know by the said to be a senior petty officer, to come with him in the direction he was walking, an order which it was his duty to obey, did at barracks 1290, on or about 1015, 031019, willfully disobeyed the same.
Violation of UCMJ, Article 92: Failure to obey order issued by Commanding Officer, VFA 195, to wit: VFA195INST 1050.2E, (Class “C” liberty risk order), that sailors at all time shall be escorted by a Petty Officer, an order which it was his duty to obey, did at Strike Fighter Squadron ONE NINE FIVE, on or about 031009, fail to obey the same by wrongfully not having an escort on or about 0910, 031009.
         Award: Forfeiture of $874.00 pay per month for 2 months, restriction for 60 days, reduction to E-4. No indication of appeal in the record.
031017:  Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of convenience of the government - mental conditions.

031017:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

031021:  Commanding Officer recommended discharge general (under honorable conditions) by reason of convenience of the government on the basis of a. physical or mental conditions not necessarily amounting to disability but affecting potential for continued active duty in the naval service as evidenced by diagnosis of adjustment disorder.

031024:  Unauthorized absentee from NRSW TPU NAVSTA SAN DIEGO, CA at 1445, 031024.

031114:  Surrendered onboard NRSW TPU NAVSTA SAN DIEGO, CA at 1611, 031114.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20031118 with a general (under honorable conditions) for convenience of the government due to a mental condition, not a disability. (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. Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code. Reenlistment policy of the naval service is promulgated by the Commander, Navy Recruiting Command, 5722 Integrity Drive, Bldg 784, Millington, TN 38054. Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment. A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.

The documentation and statements provided by the Applicant were not sufficient to overturn the presumption that the Applicant was properly diagnosed with an adjustment disorder. The Applicant was diagnosed with an adjustment disorder by a competent medical authority on 20031010. The evidence reviewed did not persuade the Board that this diagnosis and subsequent administrative separation was improper or inequitable. Relief denied.

When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. A General discharge 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 was marred by nonjudicial punishment proceedings for violations of Articles 86, 91, and 92 of the UCMJ. Also, the Applicant was UA for 21 days after being notified of CO’s intent to administratively separate him. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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 naval service. The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided sufficient documentation for the Board to consider.

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), re-issued October 2002, effective 22 Aug 2002 until Present, Article 1910-120 (formerly 3620200), SEPARATION BY REASON OF CONVENIENCE OF THE GOVERNMENT - PHYSICAL OR MENTAL CONDITIONS.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .

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 “ http://Boards.law.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:

                  Secretary of the Navy Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023

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