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NAVY | DRB | 2004_Navy | ND04-01116
Original file (ND04-01116.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
ex-AA, USN
Docket No. ND04-01116

Applicant’s Request
The application for discharge review was received on 20040629. 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 National Capital Region. 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. The Applicant did not list any representative on the DD Form 293.
Decision

A documentary review was conducted in Washington, D.C. on 20041122. 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)/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “I am writing this letter to fill in block 8 of the DD form 293. I feel that my separation/discharge should not read as Pattern of Misconduct. I feel that throughout my time of service, I did not have any patterns of misconduct. The real reason I was discharged from the Navy was because I disclosed to my Commanding officer, Legal Officer, and my LCPO that I was a homosexual. This clearly is not a pattern. I feel that this is the only reason why I was discharged and feel that I do not deserve the discharge that I received. My sexuality was nothing that was sprung up also. All of my co-workers and other service members suspected. I felt that I needed to come out and tell my CO because I felt unsafe and didn’t want to live in fear. I asked for my discharge papers and the reasons from my squadron, VF-2 but to this day I have not received any so far. I do not know if my discharge had my sexuality as the reason. The fact is this, I did come out, I hope it is on my discharge papers, and that the Navy is not hiding these reasons. If you have any other questions or concerns, feel free to contact me or email me. Thank you for your time in reading and considering this issue.”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     991018 - 000716  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 000717               Date of Discharge: 011231

 Length of Service (years, months, days):

         Active: 01 05 14
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 31

 Highest Rate: AA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.00 (1)    Behavior: 1.00 (1)                OTA: 2.00

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

 Chronological Listing of Significant Service Events :

010130:  Applicant diagnosed with chronic adjustment disorder with mixed emotions and conduct and borderline personality disorder. The psychiatrist recommended separation based on a disorder of character and behavior of such severity as to render the Applicant incapable of serving adequately in the naval service. Applicant was considered a continuing risk of doing harm to himself or others due to a history of impulsive, self-destructive, and manipulative behavior.

010611:  NJP for violation of UCMJ, Article 86: Absent without leave, violation of UCMJ, Article 91: Insubordinate conduct towards a superior petty officer.
         Award: Forfeiture of $585.00 pay per month for 1 month, extra duty for 15 days. No indication of appeal in the record.
010612:  Retention Warning: Advised of deficiency (Violation of UCMJ, Article 86 (Absent without Leave) and Article 91 (Insubordinate conduct towards a superior petty officer)), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

011017:  NJP for violation of UCMJ, Article 92: Failure to obey a lawful general order or regulation.
         Award: Forfeiture of $100.00 pay per month for 1 month. No indication of appeal in the record.
011023:  Applicant diagnosed with borderline personality disorder. Applicant continues to have difficulty adapting to military structure and life. Two periods of attempted suicide via overdose with a stimulant called “corcidin”. Applicant went to NJP on four separate occasions related to conduct or behavior problems. Recommend follow-up with Outpatient Crisis Intervention Program.
011204:  Applicant diagnosed with borderline personality disorder. Applicant has an underlying character pathology that continue to make it difficult for him to adapt to military life. Recommend expeditious administrative separation . Applicant considered a continued danger to himself and others.
011217:  Applicant notified of intended recommendation for discharge with a least favorable characterization of general (under honorable conditions) by reason of misconduct due to a pattern of misconduct and by reason of convenience of the government due to personality disorder.

011217:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.



020111:  Commanding Officer directed the Applicant’s discharge with a general (under honorable conditions) by reason of misconduct due to a pattern of misconduct. Commanding Officer’s comments (verbatim): “Airman Apprentice K_ has been a continual problem for this command and has proven, over time, that he is unfit for service in the United States Navy. Although recommended for separation by qualified medical personnel as early as January 2001, Airman Apprentice K_ was retained by the command due to his expressed desires to straighten up and be squared away, exemplary sailor. Nearly a year later he continues to provide the command with the same problems he promised to overcome long ago. Due to his most recent psychiatric evaluation of 4 Dec 01, in which he was again found unfit for Naval service and separation was again recommended, I have decided to heed the advice of the medical staff who have so diligently attempted to help Airman Apprentice K_, in the hopes that I can replace him with an eager and strong team member.”

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20011231 with a general (under 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 or inequity after a review of Applicant’s case. The Applicant contends that he was discharged for a pattern of misconduct despite the fact that he did not have any patterns of misconduct. Under relevant regulations, a pattern of misconduct occurs when a servicemember is awarded nonjudicial punishment (NJP) for any offense, receives a page 13 counseling/retention warning as a result of that NJP, and then subsequently violates the retention warning by being awarded a second NJP. A review of the Applicant’s record indicates he was awarded NJP on 010611 for violations of UCMJ Articles 86 and 91, received a retention warning on 010612 and was awarded a second NJP on 011017 for a violation of UCMJ Article 92. Based on the evidence of record, the Applicant’s contention that his conduct while in the Naval service did not amount to a pattern of misconduct is without merit. The summary of service clearly documents the pattern of misconduct for which the applicant was discharged. No other Narrative Reason for Separation could more clearly describe why the applicant was discharged. To change the Narrative Reason Separation would be inappropriate.

The Applicant further contends that he was improperly discharged as a result of a homosexual admission to his chain of command. There is no evidence in the record and the Applicant has failed to submit any evidence to support this contention. As noted above, the evidence of record supports the Applicant’s ultimate discharge for pattern of misconduct. Likewise, the record of evidence would have supported a discharge for the Applicant’s diagnosed borderline personality disorder of such severity to render him incapable of further Naval service. However, there is no evidence to suggest that the Applicant’s sexuality played any role in his discharge. To change the Narrative Reason for Separation to Homosexual Admission would be inappropriate.

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 (under 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 Applicant’s service was marred by two nonjudicial punishment proceedings for violations of Articles 86, 91 and 92 of the UCMJ. 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 15560C), Change 18, effective
12 Dec 1997 until 21 Aug 2002, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - 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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