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NAVY | DRB | 2004_Navy | ND04-01400
Original file (ND04-01400.rtf) Auto-classification: Denied


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

ex-FR, USN
Docket No. ND04-01400

Applicant’s Request
The application for discharge review was received on 20040908. 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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050107. 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 and narrative reason of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/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. “The reason for my separation from the U.S. Navy was beyond my control. I had a mental condition prior to my contract that I was unaware of that was deemed a disability and was agitated by the Navy, so I was discharged before my total contract was up. I had served 2 years and 3 mo. Which should mean I am eligible for my GI Bill and home loan assistance but have been denied. I feel this is injust. On my release paperwork it says I was discharged for pattern of misconduct and this should also be correct as a mental imparement. I was told later that in fact it was other than honorable. I served my country to the very best of my ability. I meet the requirements of Veteran status due to the fact I served 2+ years but I am being denied ANY benefit for my time and effort.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Copies of Applicant’s medical record (5 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     920731 - 930721  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 930722                Date of Discharge: 951027

 Length of Service (years, months, days):

         Active: 02 03 06
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 51

 Highest Rate: FN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.10 (4)    Behavior: 3.00 (3)                OTA: 3.07

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SASR, SSDR, Navy “E” Ribbon

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

941209:  NJP for violation of UCMJ, Article 128: Assaulting a shipmate by punching her in the face, violation of UCMJ, Article 134: Disorderly conduct.
         Award: Forfeiture of $200 per month for 2 month(s), restriction and extra duty for 30 days, reduction to E-1. No indication of appeal in the record.
950104:  NJP for violation of UCMJ, Article 86: failure to go to restricted muster.
Award: Forfeiture of $75.00 per month for 1 month, restriction and extra duty for 7 days. No indication of appeal in the record.
950105:  Applicant diagnosed with Schizoid Personality. The psychiatrist recommended separation based on a personality disorder of such severity as to render the Applicant incapable of serving adequately in the naval service. Applicant was not considered self-destructive or a continuing risk of harm to self or others.

950111:  NJP for violation of UCMJ, Article 134: Broke restriction.
Award: Forfeiture of $50 per month for 1 month, restriction and extra duty for 7 days. No indication of appeal in the record.

 950111:  Retention Warning from USS CAPE COD: Advised of deficiency (CO’s NJP on 950111 and 941209), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

950419:  Retention Warning from USS CAPE COD: Advised of deficiency (personality disorder diagnosed on 950105), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

950511:  NJP for violation of UCMJ, Article 92 (2 specs): Wrongfully possessing safety equipment and hazardous material.
Award: Forfeiture of $50 per month for 1 month, restriction and extra duty for 7 days. No indication of appeal in the record.
951026:  Commanding Officer, USS ESSEX, notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of convenience of the government on the basis of personality disorder as evidenced by Fleet Mental Health Unit and a pattern of misconduct as evidenced by all Commanding Officer’s Nonjudicial Punishments during the enlistment.
951027:  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.

951027:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
951211:  Commanding Officer, USS ESSEX (LHD 2) forwarded administrative discharge package to BUPERS and advised Applicant was discharged under other than honorable.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19951027 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 error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the Applicant’s enlistment. While he may feel that his diagnosed personality disorder was a contributing factor, it does not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service. His service record is marred by award of nonjudicial punishment (NJP) on four separate occasions for violating the UCMJ, Articles 86, 92, 128, and 134 thus substantiating his misconduct . The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. An upgrade would be inappropriate. Relief denied.

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 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 Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board (NDRB). There is no requirement or law that grants recharacterization solely on the issue of obtaining Veteran’s benefits and this issue does not serve to provide foundation upon which the Board can grant relief.

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 15560C, Change 9, effective
22 Jul 94 until 02 Oct 96), 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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