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NAVY | DRB | 2004_Navy | ND04-01366
Original file (ND04-01366.rtf) Auto-classification: Denied


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


ex-SR, USN
Docket No. ND04-01366

Applicant’s Request
The application for discharge review was received on 20040902. The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to “Hardship.” 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.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 20050324. 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 4 to 1 that the character of the discharge shall not change and by unanimous vote that the reason for 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
Issues submitted by Applicant and his representative (American Legion):

 1. “(Equity Issue) This former member opines that youth and immaturity, family problems, and a severe personality disorder, contributed to and sufficiently mitigated his misconduct of record to warrant the Board’s relief.

2. (Equity Issue) This former member further requests that the Board consider provisions of SECNAVINST 5420.174D, Part V, Paragraph 503, as it pertains to post-service conduct, in assessing the merits of this application.

3. (Equity Issue) This former member finally requests that his narrative reason for discharge be changed from Misconduct to Secretarial Authority on the basis of his fathers illness.”

Issues submitted by Applicant’s representative supersede DD Form 293 filed 20040902.


Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from North Carolina Department of Administration, dated August 25, 2004
Letter from Applicant, dated May 23, 2004
Page from the Internet concerning upgrading your military discharge, dated May 23, 2004 (5 pages)
One page from Applicant’s previous decisional document with one line highlighted
State of North Carolina, Order and Certificate of Name Change, dated October 13, 1998
Letter of recommendation from Pastor, Grace Baptist Church, undated
Letter of commendation, dated May 26, 2004
Letter from Assistant Principal, Hudson Middle School, dated June 4, 2004
Volunteer work verification from Lenior Rescue Squad, Inc., dated June 4, 2004
Letter from Applicant’s aunt, dated June 4, 2004
Thank you letter to the Applicant, dated June 25, 2004 (2 pages)
Letter of recommendation, dated June 4, 2004
Letter of recommendation, dated May 27, 2004
Work verification from North Carolina Department of Correction, dated June 8, 2004
Letter of recommendation, undated
Newspaper article, undated
Applicant’s examination results, dated July 1, 2003
Certificate of completion, dated August 31, 2001
Certificate of completion, dated August 31, 2001
Certificate of completion, dated September 26, 2003
Certificate of completion, dated September 26, 2003
Certificate of completion, dated January 29, 2003
Certificate of completion, dated January 29, 2003
Certificate of completion, dated January 29, 2003
Certificate of completion, dated January 29, 2003
Certificate of completion, dated May 18, 1997
Certificate of completion, dated December 15, 2003
Certificate of appreciation, dated January 12, 2004
Certificate of completion, dated October 30, 2003
Certificate of completion, dated September 20, 2004
Basic State Correction Certificate, dated September 20, 2004
Certificate of completion, dated July 23, 2002
Certificate of completion, dated May 16, 2002
Certificate of completion, dated May 6, 2003
Certificate of completion, dated April 5, 2004
Certificate of completion, dated February 10, 2003
Certificate of completion, dated August 15, 2002
Certificate of completion, dated September 8, 2003
Certificate of completion, dated February 2, 2004
Certificate of completion, dated January 5, 2004
Criminal Records Check, dated December 13, 1995 (4 pages)
Character reference, dated December 13, 1995
Letter of recommendation, dated December 11, 1995
Character reference, dated December 12, 1995
Letter from Applicant’s mother, dated March 16, 2005 (4 pages)
California Achievement Test results, dated 1980-1981 and 1983 (3 pages)
Social Security Administration Disability verification, dated March 6, 2002
Employment verification from Four 4 Truckers Nationwide Express for January 1998-May 1999, dated, September 15, 2004
Character reference from Caldwell County Sheriff’s Office, dated September 17, 2004
Character reference from Battalion Chief, Lenior Fire Department, North Carolina, dated September 16, 2004
Employment verification from Four Truckers, INC for 1998 – 1999 and 2003 – Present, dated September 15, 2004.
 Certificate of completion, dated September 13, 2004


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     881223 - 890212  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 890213                        Date of Discharge: 900803

 Length of Service (years, months, days):

         Active: 01 05 21 (Lost time not excluded)
         Inactive: None

 Age at Entry: 17 (Parental Consent)     Years Contracted: 4

 Education Level: 9 (GED)                           AFQT: 46/45

 Highest Rate: FA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.80 (1)                      Behavior: 2.80 (1)                OTA: 2.80

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 11

 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 :

890914:  Applicant to unauthorized absence 0715-1050, 890914.

891020:  Applicant to unauthorized absence 0715, 891020.

891021:  Applicant from unauthorized absence 0715, 891021 (1 day/surrendered).

 891108:  Applicant admitted to Naval Hospital Philadelphia because of a “suicide attempt”.
891120:  Psychiatric Evaluation: Diagnoses: Personality disorder, not otherwise specified (immature and dependent), severe, EPTE.
900103:  Retention Warning from USS KITTY HAWK (CV 63): Advised of deficiency (Diagnosis of severe personality disorder, immature type, characterized by immaturity, indecisiveness and difficulty coping with stress), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 900116:  Applicant to unauthorized absence 1415, 900116.

900123:  Applicant from unauthorized absence 1840, 900123 (7 days/surrendered).

 900125:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 900116 to 900123.
         Award: Forfeiture of $150 per month for 2 months, correctional custody for 30 days. Forfeiture suspended for 6 months. No indication of appeal in the record.
900125:  Correctional custody deferred until 900126 due to exigencies of the service.
900312:  Applicant to unauthorized absence 0700, 900312.

900313:  Applicant declared a deserter.

900314:  Applicant from unauthorized absence 2230, 900314 (2 days/surrendered).

 900315:  Vacate suspended forfeiture awarded at CO’s NJP dated 900125 due to subsequent misconduct and CO’s NJP 900315.

900315:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 900312 to 900314.
         Award: Forfeiture of $100 per month for 1 month, restriction and extra duty for 15 days. No indication of appeal in the record.
900529:  Applicant to unauthorized absence 0700, 900529.

900530:  Applicant from unauthorized absence 2330, 900530 (1 day/surrendered).

 900614:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0700, 900529 to 2330, 900530.
         Award: Forfeiture of $150 per month for 2 months, confinement on bread and water for 3 days, reduction to E-1. No indication of appeal in the record.
900614:  Retention Warning from USS KITTY HAWK (CV 63): Advised of deficiency (Unauthorized absence from 900312 to 900314, 900116 to 900123 and 0700, 900529 to 2330, 900530), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
900712:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0700-0830, 900705, violation of UCMJ, Article 91: Disrespectful in language to a petty officer on 900628, violation of UCMJ, Article 92 (3 specs): (1) Dereliction of duty on 900628, (2-3) Disobeying a lawful order on 900705.
         Award: Forfeiture of $100 per month for 2 months, confinement on bread and water for 3 days. No indication of appeal in the record.
900712:  USS KITTY HAWK (CV 63) notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense as evidenced by your enlisted service record and by reason of a designated mental condition, to wit: previously diagnosed personality disorder.
900712:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ, Article 27(b), elected to waive all rights.
900717:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to a commission of a serious offense and by reason of convenience of the government as evidenced by a designated mental condition, to wit: personality disorder, not otherwise specified (immature and dependent), severe. Commanding Officer’s comments (verbatim): FR B_ ( Applicant ) has been on active duty for 17 months, and on board this command 11 months. FR B_ ( Applicant ) appeared at Captain's Mast on 25 January 1990, 15 March 1990, and 14 June 1990 for unauthorized absences. On 14 June 1990 FR B_ ( Applicant ) was warned that further misconduct would result in an administrative discharge. On 12 July 1990 FR B_ ( Applicant ) was once again at Captain’s Mast for unauthorized absence, disrespect to a petty officer, dereliction of duty, and two specifications of disobeying a lawful order. It is noted that several of the offenses FR B_ ( Applicant ) has committed carry a bad conduct discharge as an authorized punishment at trial by special court-martial, making these “serious offenses” as defined by reference (b).
 FR's B_'s ( Applicant 's) naval career thus far has been highlighted by consistent, willful disregard for the Uniform Code of Military Justice and the authority of officers and petty officers appointed over him. FR B_ ( Applicant ) has also been diagnosed as having a personality disorder, however, it is discontinued, flagrant acts of misconduct which renders him unsuitable for continued naval service. FR B_ ( Applicant ) has earned my strongest recommendation for administrative discharge under other than honorable conditions.
900730:  CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

960903:  NDRB documentary record review Docket Number ND96-01031 conducted. Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19900803 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: The Applicant stated that youth and immaturity, family problems, and a severe personality disorder, contributed to and sufficiently mitigated his misconduct of record to warrant the Board’s relief. The NDRB recognizes that serving in the U.S. Navy is challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. It must be noted that most members of the Navy 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. 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. The Applicant’s service was marred by the award of four nonjudicial punishment (NJP) proceedings for violations of UCMJ Articles 86 (Unauthorized absence), Article 91 (Disrespectful in language to a petty officer), and Article 92 (3 Specifications – (1) Dereliction of duty, (2-3) Disobeying a lawful order). The mere presence of a personality disorder is not a bar to Naval Service. There is no evidence in the record to suggest that Applicant was not responsible for his misconduct or that he should not be held accountable for his actions. In the Applicant’s case, 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. Therefore, the NDRB considered the Applicant’s discharge proper and equitable. Relief denied.

Issue 2: 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 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. The Board was impressed with the Applicant’s outstanding work accomplishments, however the evidence of post-service conduct was found not to mitigate his misconduct sufficiently to warrant an upgrade to his discharge. Relief denied.



Issue 3: The Applicant requests that his narrative reason for discharge be changed from Misconduct to Secretarial Authority on the basis of his father’s illness. The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted. The summary of service clearly documents that misconduct due to a pattern of misconduct was the reason the Applicant was discharged. No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. To change the Narrative Reason for Separation would be inappropriate. Relief denied.

The following if provided for the edification of the Applicant. The Applicant has exhausted his opportunities for review by the NDRB. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

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 5420.174D 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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