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NAVY | DRB | 2004_Navy | ND04-00837
Original file (ND04-00837.rtf) Auto-classification: Denied


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

ex-FR, USN
Docket No. ND04-00837

Applicant’s Request
The application for discharge review was received on 20040426. 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 review. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20041015. 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. “An Injustice was discovered in 6-18-01 after a consultation with an informed representative of the D.A.V.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     891122 - 891203  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 891204               Date of Discharge: 910618

 Length of Service (years, months, days):

         Active: 01 06 15 (Includes lost time)
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 10                        AFQT: 57

 Highest Rate: FR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA*        Behavior: NMA             OTA : NMA

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 267

*No marks assigned

 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 :

900806:  Applicant to UA this date.

 900905:  Report of Declaration of Deserter: Applicant declared deserter this date having been in an unauthorized absence status since 900806.

901010:  Applicant apprehended this date.

901011:  Report of Return of Deserter: Applicant apprehended and returned to military control by NIS on 901010 for UA/desertion.

901012:  Applicant to UA this date.

 901113:  Report of Declaration of Deserter: Applicant declared deserter this date having been in an unauthorized absence status since 901012.

910502:  Applicant surrendered to military authorities this date.

910507:  Report of Return of Deserter: Applicant surrendered to civilian authority in Farmington, MO on 910502, returned to military control by Navy Deserter Information Point on 910502 by CNMPC, Washington, DC.

910510:  Applicant diagnosed with personality disorder not otherwise specified, with borderline and antisocial traits, severe, EPTE, NSA. The psychiatrist recommended separation because of his apparent inability to adjust to Naval service and a long standing history of maladaptive behavior.
910524:  Applicant notified of intended recommendation for discharge with a least favorable characterization of under other than honorable conditions by reason of misconduct due to the commission of a serious offense and convenience of the government due to a diagnosed personality disorder.
910524:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights.
910529:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and convenience of the government due to diagnosed personality disorder.

910613:  BUPERS 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 19910618 under other than honorable conditions for misconduct due to commission of a serious offense (A and B). The Board presumed regularity in the conduct of governmental affairs (C). 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 (D and E).

Issue 1: Normally, to permit relief, an 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. The Applicant contends that a representative of the Disabled American Veterans discovered an injustice after a review of his case. A careful review by the Board discovered no such injustice. An under other than honorable conditions 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 record demonstrates that the Applicant was in an unauthorized absence status for approximately 267 days. The mere presence of a personality disorder is neither a bar to Naval Service, nor a justification to commit misconduct. Additionally, there is no evidence in the record to suggest that the Applicant was not responsible for his misconduct or that he should not be held accountable for his actions. 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 Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of 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 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. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 86, for unauthorized absence for a period in excess of 30 days, if adjudged at a Special or General Court-Martial.

C. 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.

D. 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.

E. 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      



BOARD MEMBERS RECORD OF VOTE


 NAME                       CHARACTER OF SERVICE     REASON FOR DISCHARGE
T. B. GALVIN, COL, USMC                    NO CHANGE                          NO CHANGE
Presiding Officer

W. BRIGGS, LTCOL, USMC                     NO CHANGE                          NO CHANGE
Member

A. KOLKMEYER, LTCOL, USMC                 NO CHANGE                          NO CHANGE
Member

J. ZWILLER, CAPT, USMC                     NO CHANGE                          NO CHANGE
Member

J. L. KOSKY, LT, JAGC, USNR               NO CHANGE                          NO CHANGE
Recorder



Recorder’s Signature:_____________________________________________


Presiding Officer’s Signature:_______________________________________


A. The 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 , states:

1. Basis. A member may be separated for misconduct when it is determined, under MILPERSMAN 3610200, that a member is unqualified for further military service by reason of one or more of the following circumstances:

a. Minor disciplinary infractions. A series of at least three but not more than eight minor violations (e.g. specifications) of the Uniform Code of Military Justice UCMJ (none that could warrant a punitive discharge and not drug related) documented in the service record, within the current enlistment, which have been disciplined by not more than two (2) punishments under the UCMJ. The member must have violated counseling (3630600.2) prior to initiating processing. If the presented case exceeds these limits, including three or more periods of unauthorized absence of more than 3 days duration each, then process for pattern of misconduct or commission of a serious offense. Process drug abuse cases in accordance with MILPERSMAN 3630620. If separation of a member in entry level status is warranted solely by reason of minor violations of the UCMJ, and the member's misconduct does not meet the eligibility requirements for processing due to a pattern of misconduct, or commission of a serious offense, the processing should be under Entry Level Performance and Conduct (MILPERSMAN 3630200).

b. A Pattern of Misconduct.

(1) A pattern of misconduct is defined in part as discreditable involvement with civil and naval authorities as evidenced by one or more of the following:

 (a) Two or more minor civilian convictions within the current enlistment, the latest civilian conviction and counseling to have occurred while assigned to the parent command. (Separation activities defined in MILPERSMAN 3640476, and other commands to which TEMDU is authorized by Commander, Military Personnel Command (COMNAVMILPERSCOM), are exempt from this requirement). Members should be dual processed for misconduct due to commission of a serious offense and misconduct due to civilian conviction where appropriate.

(b) Three or more punishments under the UCMJ within the current enlistment, the latest offense and counseling to have occurred while assigned to the parent command. (Separation activities defined in MILPERSMAN 3640476, and other commands to which TEMDU is authorized by COMNAVMILPERSCOM , are exempt from this requirement). Members should be dual processed for misconduct due to commission of a serious offense and misconduct due to civilian conviction where appropriate.

(c) Any combination of three minor civilian convictions misdemeanor(s) and or punishment(s) under the UCMJ within the current enlistment, the latest offense and counseling to have occurred while assigned to the parent command. (Separation activities defined in MILPERSMAN 3640476, and other commands to which TEMDU is authorized by COMNAVMILPERSCOM, are exempt from this requirement). Members should be dual processed for misconduct due to commission of a serious offense and misconduct due to civilian conviction where appropriate.

(d) Three or more periods of unauthorized absence of more than 3 days duration each within the current enlistment, the latest offense and counseling to have occurred while assigned to the parent command. (Separation activities defined in MILPERSMAN 3640476, and other commands to which TEMDU is authorized by COMNAVMILPERSCOM, are exempt from this requirement). Members should be dual processed for misconduct due to commission of a serious offense and misconduct due to civilian conviction where appropriate.

(e) Nine or more violations (e.g., specifications) of the UCMJ within the current enlistment which have been disciplined by punishment under the UCMJ. The latest offense and counseling to have occurred while assigned to the parent command. (Separation activities defined in MILPERSMAN 3640476, and other commands to which TEMDU is authorized by COMNAVMILPERSCOM, are exempt from this requirement). Members should be dual processed for misconduct due to commission of a serious offense and misconduct due to civilian conviction where appropriate.

(2) A member may also be separated for misconduct due to a pattern of misconduct as evidenced by:

(a) A set pattern of failure to pay just debts. (Include financial statement prepared as specified in MILPERSMAN 6210140.14 when case is forwarded.)

(b) A set pattern of failure to contribute adequate support to dependents or failure to follow orders, decrees or judgments of a civil court concerning the support of dependents. Include copies of court order(s), judgments, etc.

c. Commission of a serious offense. Commission of a serious military or civilian offense, if:

(1) The specific circumstances of the offense warrant separation; and,

(2) A punitive discharge would be authorized by the Manual for Courts-Martial for the same or a closely related offense. Note that:

(a) If basis for offense is evidenced by a court-martial conviction --the findings of which have been approved by the convening authority--the findings of the court-martial as they relate to the administrative discharge process (basis and reason) are binding on the administrative discharge board. See Article 3610200.5a.

(b) I basis for offense is evidence solely by a court-martial conviction and the court-martial convening authority has remitted or suspended a punitive discharge, forward case to the same convening authority for endorsement according to MILPERSMAN 3610200.5b.

(d) Civilian conviction

(1) Conviction by civilian authorities, or action taken which is equivalent to a finding of guilty, including similar adjudication in juvenile proceedings, when the specific circumstances of the offense warrant separation and, (1) a punitive discharge would be authorized for the same or closely related offense under the Manual for Courts-Martial, or (2) the sentence includes confinement for six months or more without regard to suspension or probation. In all cases, advise whether the member has appealed the conviction or not and, if not, the time limit within which member has to file a appeal. In addition, if the member has appealed, advise of its outcome or anticipated decision date.

(2) Separation processing may be initiated whether or not a member has filed an appeal of a civilian conviction or has stated an intention to do so. However, execution of an approved separation shall be withheld pending outcome of the appeal or until the time for appeal has passed, unless the Chief of Naval Operations, the Commandant of the Marine Corps, or the member has requested separation and such a requests have been approved by the Secretary of the Navy, who may direct that the member be separated before final action in the appeal.

(3) Misconduct due to civilian conviction. If member is convicted of a felony which includes a sentence to confinement for more than 1 year (whether suspended or not), or an offense involving sexual perversion, processing is mandatory.

2. Counseling and rehabilitation

a. Separation processing for a series of minor disciplinary infractions or a pattern of misconduct may not be initiated until the member has been counseled by his or her parent command concerning deficiencies and has been afforded an opportunity to overcome those deficiencies as reflected in appropriate counseling or personnel records. Only one counseling entry during the current enlistment by the parent command is required. Such efforts shall include the following and be documented in the member's service record by Page 13 entry (see NAVMILPERSCOMINST 1910.1).

(1) Written notification concerning deficiencies or impairments.

(2) Specific recommendations for corrective action indicating any assistance available.

(3) Comprehensive explanation of the consequences of failure to under take successfully the recommended corrective action.

(4) Reasonable opportunity for the member to undertake the recommended corrective action.

b. Counseling and rehabilitation are not required if the reason for misconduct separation is commission of a serious offense, civilian felony conviction or a similar juvenile adjudication.

3. Characterization or Description. Normally under Other Than Honorable Conditions, but characterization as General may be assigned when warranted. For respondents who have completed entry level status, characterization of service as Honorable is not authorized unless the respondent's record is otherwise so meritorious that any other characterization would be clearly inappropriate and the separation is approved by Commander, Naval Military Personnel Command, or higher authority. When characterization of service under Other Than Honorable Conditions is not warranted for a member in entry level status, the separation shall be described as Entry Level Separation.

4. Reduction in rate. When a service member serving in paygrade E-4 or above is administratively separated with an Other Than Honorable characterization of service, the member shall be administratively reduced to paygrade E-3, such reduction to become effective upon separation.

5. Procedures

a. The Administrative Board Procedure (MILPERSMAN 3640300) shall be used; however, use of the Notification Procedure (MILPERSMAN 3640200) is authorized for use when processing members for misconduct due to minor disciplinary infractions or if characterization of service under Other Than Honorable Conditions is not warranted as described in MILPERSMAN 3610300.3c.

b. When a member is processed for separation for a commission of a serious offense or civilian conviction, the Administrative Board Procedure (MILPERSMAN 3640300) shall be used.

c. Request that the member execute a signed statement of awareness and request for or waiver of rights after his or her receipt of the Notice of Administrative Board Procedure Proposed Action. Use the Notification Procedure (MILPERSMAN 3640200) in the case of members processed for misconduct due to minor disciplinary infractions, or misconduct due to a pattern of misconduct wherein a general discharge is deemed appropriate.

d. Forward the processed case by letter of transmittal [or message] to Commander, Naval Military Personnel Command (NMPC-83). Ensure member's full name, rate and SSN have been indicated on each page of the case. Refer to NAVMILPERSCOMINST 1910.1 for message submission option.

Note that if basis for offense is evidenced solely by a court-martial conviction and the court-martial convening authority has remitted or suspended a punitive discharge, forward case to the same convening authority for endorsement in accordance with MILPERSMAN 3610200.5.

e. Misconduct involving homosexuality shall be processed in accordance with MILPERSMAN 3630400. Misconduct involving a fraudulent entry shall be processed in accordance with MILPERSMAN 3630100. Misconduct involving drug abuse shall be processed in accordance with MILPERSMAN 3630620.

f. A member who is absent without authority may be processed under this article without returning to military control in the following circumstances:

(1) Absent without authority after receiving notice of initiation of separation processing.

(2) When prosecution of the member appears to be barred by the Statute of Limitations, Article 43 UCMJ, and the statute has not been tolled by any of the conditions set out in Article 43(d).

(3) When the member is an alien and appears to have gone to a foreign country where the United States has no authority to apprehend the member under treaty or other agreement.

g. A member of a reserve component who is on active duty and is within two years of becoming eligible for retired pay or retainer pay under a purely military retirement system, may not be involuntarily released from that duty before he or she becomes eligible for that pay, unless his or her release is approved by the Secretary of the Navy.

h. In such cases as described in subparagraphs (2) and (3) of paragraph 4f, the Notice required in either MILPERSMAN 3640200 or 3640300 shall:

(1) Specify date (not less than 30 days from the date of delivery of the notice) in order to give the member the opportunity to return to military control and, if the member does not return to military control by such a date, that the separation process shall continue.

 (2) Be sent to the member by registered mail or certified mail, return receipt requested (or by an equivalent form of notice if such service by U.S. Mail is not available for delivery at an address outside of the United States) to the member's last known address or the next of kin.

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