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NAVY | DRB | 2004_Navy | ND04-00954
Original file (ND04-00954.rtf) Auto-classification: Denied


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

ex-ATAA, USN
Docket No. ND04-00954

Applicant’s Request
The application for discharge review was received on 20040526. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area. The Applicant listed the American Legion 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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050304. 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. “Due to problems in service that was based on an incident that I was suffering from depression as noted in the attached statement. I was awol and this was due to depression. When I was discharged, I was having problems with depression. The CO wanted me to stay in, however, when the doctor sent the orders in for discharge, I received an OTH. I believe the type of discharge received is unjust due to having a medical condition. I should have been treated and retained in the service. This was an incident that only occurred one time. The doctor stated I should be administratively discharged and when I signed the discharged it was OTH. Please consider the change of discharge.”

No additional issues were submitted by the Applicant’s representative (American Legion).



 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (2)
Four pages from Applicant’s service record
Letter from Applicant, undated (2 pp.)
Job reference, dated June 8, 2004

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     001220 - 011021  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 011022               Date of Discharge: 030305

 Length of Service (years, months, days):

         Active: 01 04 14         Does not exclude lost time
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 11                        AFQT: 80

 Highest Rate: ATAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 1.00 (1)             Behavior: 1.00 (1)                OTA: 1.00

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 52

 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 :

030124:  Applicant was admitted to NMC Portsmouth on 030115 following a suicide attempt by medication overdose. Psychiatric evaluation diagnoses: AXIS I: Adjustment disorder with depressed mood. AXIS II: Borderline personality disorder, with avoidant traits. AXIS III: Menorrhagia, iron deficiency anemia. AXIS IV: Routine military stress. AXIS V: GAF 70. Recommended for administrative separation.

030210:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 021112-030103.
         Award: Reduction to E-2. No indication of appeal in the record.
030210:  Retention Warning: Advised of deficiency (Unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
030210:  Psychiatric evaluation diagnosis: Borderline personality disorder, severe, existed prior to enlistment.

030211:  Applicant notified of intended administrative separation under other than honorable conditions by reason of misconduct due to the commission of a serious offense and convenience of the government on the basis of a personality disorder.
030211:  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.
030219:  Commanding Officer, Naval Maintenance Training Unit, Whidbey Island, WA recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and by reason of convenience of the government due to a personality disorder.

030220:  Commanding Officer, Naval Air Station Whidbey Island, Oak Harbor, WA 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 20030305 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. The Applicant was diagnosed to possess an adjustment and personality disorder by competent medical authority on 20030124. Although the Applicant was recommended for administrative separation by competent medical authority on the basis of an adjustment and personality disorder, regulations required that such processing include all bases for separation. In this case, the Applicant was dual processed for misconduct due to the commission of a serious offense based on her receipt of nonjudicial punishment for unauthorized absence. The separation authority properly exercised his discretionary authority in electing to separate the Applicant for misconduct. Normally, where more than one basis for administrative separation exists, misconduct will take precedence over other reasons. Contrary to the Applicant’s statement to the Board, the Applicant clearly waived her right to an administrative discharge board on 20030211. A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor. T he Applicant’s unauthorized absence of greater than 30 days is considered a serious offense under the UCMJ. While she may feel that depression was a factor that contributed to her actions, the record reflects her disregard for the requirements of military discipline and demonstrated that she was unfit for further service. The evidence of record does not demonstrate that the Applicant was not responsible for her conduct or that she should not be held accountable for her actions. An upgrade is inappropriate. Relief denied.

The Applicant’s discharge characterization accurately reflects her service to her country. Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question. No such inequity or impropriety is evident during the Applicant’s enlistment. Additionally, 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. Evidence of continuing educational pursuits, documentation of community service, certification of non-involvement with civil authorities and evidence of a substance free lifestyle, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct. The Applicant’s evidence of post-service conduct was found not to mitigate her misconduct sufficient to warrant an upgrade to her discharge.

The Applicant is reminded that she remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of her 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 15560C), re-issued October 2002, effective 22 Aug 02 until Present, Article 1910-142 [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

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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