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NAVY | DRB | 2004_Navy | ND04-00904
Original file (ND04-00904.rtf) Auto-classification: Denied


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

ex-MSSR USN
Docket No. ND04-00904

Applicant’s Request
The application for discharge review was received on 20040512. 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 did not list any representative on the DD Form 293. Subsequent to the application, the Applicant obtained representation from the American Legion.

Decision

A documentary discharge 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 - Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “I respectfully request that my discharge be upgraded to that of GENERAL – UNDER HONORABLE CONDITIONS based on my first four (4) years of honorable service, and four (4) year good conduct award while in the submarine service as a member of USS Andrew Jackson Gold Crew, and decommissioning crew prior to my reenlistment. Duirng my two (2) years of my reenlistment period, I feel I was under a great amount of stress related to the birth of my son, followed by divorce from my first wife, a second marriage to another young female sailor, and a second divorce within those two (2) years. Also this caused financial difficulties resulting in failed councelling, medical problems up to and including a one (1) week stay in the Navy Hospital mental ward in Orlando, FL. In a clinacallly depressed state, all of which I think contributed to my misconduct. None of which I am particurally proud of, and would give all to change. I am proud of my service to my country, and have lived the last fourteen (14) years in deep regret. I am only now requesting this review because I don’t feel worthy for not fulfilling my service obligation. This however does not take away from my first tour, and the feelings I carry with pride for those I served with and those who continue to serve. Thank you for your attention to my request.”

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

 2. “Equity Issue: Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.
________________________________________________________________________
In accordance with 32 C.F.R., section 724.166, and SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement in supplement to the Applicant’s petition.

Review of the available records reflect that this former member received an HD for a prior enlistment, maintained satisfactory performance and conduct markings with a 3.63 OTA and earned the NDSM, SSDR, SSBN 619 GP 63, 65, 67, 69, and SWBI. H e was awarded NJP on 901108 for VUCMJ, Arts. 86; NJP on 910328 for VUCMJ, Arts. 86, 92 and NJP on 910619 for VUCMJ, Art. 86. Following due process notifications, he discharged Under Other Than Honorable Conditions due to misconduct as authorized by NAVMILPERSMAN, Art. 3630600.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because mitigating marital problems contributed his misconduct. He has not submitted any additional documentation for consideration.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised. To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553, and set forth in 32 C.F.R., part 724 and SECNAVINST 5420.174C, enclosure (1).

This case is now respectfully submitted for deliberation and disposition.”

 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)     841116 - 850623  COG
         Active: USN                        850624 - 890423  HON

 Period of Service Under Review :
Date of Enlistment: 890424               Date of Discharge: 910705

 Length of Service (years, months, days):

         Active: 02 00 21         (Excludes lost time)
         Inactive: None

 Age at Entry: 22                          Years Contracted: 6

 Education Level: 12                        AFQT: 38

 Highest Rate: MS3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.26 (3)    Behavior: 3.46 (3)                OTA: 3.33

 Military Decorations: Subsurface Warfare Breast Insignia

 Unit/Campaign/Service Awards: NDSM, SSDR, SSBN Gold Patrol Award (4)

 Days of Unauthorized Absence: 50

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

890424:  Applicant reenlisted for 6 years.

901007:  Applicant to unauthorized absence 0530, 901007.

901030:  Applicant from unauthorized absence 1600, 901030 (23 days/surrendered).

901108:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0530, 901007 to 1600, 901030.
         Award: Forfeiture of $250 per month for 2 months, correctional custody for 30 days, reduction to E-3. No indication of appeal in the record.
901215:  Applicant admitted to Psychiatry Unit, Naval Hospital, Orlando, FL because of feelings of depression, suicidal thoughts and marital problems.
901221:  Applicant discharged from Naval Hospital. Diagnoses: AXIS I: Adjustment disorder with depressed mood. AXIS II: Marital problems. AXIS III: Spouse abuse. AXIS IV: Personality disorder, not otherwise specified.
910304:  Applicant to unauthorized absence 0700, 910304.

910312:  Applicant from unauthorized absence 0900, 910312 (8 days/surrendered).

 910328:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0700, 910304 to 0900, 910312, violation of UCMJ, Article 92: Failed to obey a lawful order, to wit: 48 hour bedrest.
         Award: Restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
910329:  Retention Warning from Commanding Officer, Naval Training Station, Naval Training Center, Orlando, FL: Advised of deficiency (Unauthorized absence.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910516:  Applicant to unauthorized absence 1530, 910516.

910605:  Applicant from unauthorized absence 0800, 910605 (19 days/surrendered).

910619:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0800, 910605, a period of about 20 days.
         Award: Restriction for 45 days, reduction to E-1. No indication of appeal in the record.
910619:  Commander, Naval Training Center, Orlando, FL notified Applicant of intended recommendation for discharge with a least favorable characterization of under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
910619:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights.
910620:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

910626:  Mental Health: Diagnoses: AXIS I: Adjustment disorder with mixed emotional factors. AXIS II: Personality disorder with borderline features.

910626:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19910705 under other than honorable conditions for misconduct due to a pattern of misconduct (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 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 his disciplinary problems were the result of clinical depression caused by the disintegration of his two marriages within two years, and financial difficulties. The Applicant’s service was marred by three nonjudicial punishment (NJP) proceedings for violations of UCMJ Article 86, unauthorized absence, and Article 92, failure to obey a lawful order. The NDRB recognizes that serving in the U.S. Navy is challenging. Our country is fortunate to have men and women willing to ensure the hardships and sacrifices required in order to serve their country. It must be noted that many members of the Navy endure similar hardships to those of the Applicant. The vast majority of those members are still able to serve honorably and therefore earn their honorable discharges. In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.

There is no evidence in the record to suggest that Applicant was not legally responsible for his misconduct or that he should not be held accountable for his actions. Additionally, the Board could discern no impropriety or inequity in the Applicant’s discharge based merely on the fact that Applicant was permitted to continue his service despite the presence of a diagnosed personality disorder. Furthermore, the Board found no impropriety or inequity in the fact that the Applicant was processed for separation by reason of misconduct, pattern of misconduct, vice convenience of the government, personality disorder. Administrative processing for disciplinary separations normally supersedes processing for medical conditions, including diagnosed personality disorders. The NDRB found that the Applicant's service was equitably characterized. Relief denied.

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 A PATTERN OF MISCONDUCT.

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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