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NAVY | DRB | 2005_Navy | ND0500373
Original file (ND0500373.rtf) Auto-classification: Denied


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

ex-AR, USN
Docket No. ND05-00373

Applicant’s Request
The application for discharge review was received on 20041227. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requests a personal appearance hearing discharge review before a traveling panel closest to Tampa or St. Petersburg, Fl. The Applicant listed 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) does not travel; all hearings are held in the Washington, D.C. Metropolitan area.

 Decision

A personal appearance hearing discharge review was conducted in Washington, D.C. on 20051027. After a thorough review of the available 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 submitted by the American Legion, which supersede the Applicant’s issue as submitted on his DD Form 293:

 Additional issues submitted by Applicant’s counsel/representative (AMERICAN LEGION):
1 (Equity Issue) This former member opines that family problems contributed to sufficiently extenuated his misconduct of record to warrant the Board’s relief.

2 (Equity Issue) This former member further avers that his narrative reason for discharge, misconduct is inequitable and warrants change to secretarial authority.

3 (Equity Issue) This former member finally requests that the Board consider provisions of SECNAVINST 5420.174D, Part IV, Paragraph 403 m (7), as it pertains to post-service conduct, in assessing the merits of this application.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 1)
Applicant’s DD Form 214 (Member 4), reissued November 5, 2004
VA Form 21-22, Veterans Service Organization Appointment dated December 10, 2004
Letter from Applicant dated December 2, 2004
Copy of Previous Decisional Document (8 pages)
Copy of Psychiatric Evaluation dated June 29, 2004 (3 pages)
Copy of Psychological Evaluation dated October 13, 2004 (3 pages)
Enlistment Reference from A_ B. M_ dated May 3, 2004 (2 pages)
Enlistment Reference from R_ P. A_ dated May 11, 2004 (2 pages)
Enlistment Reference from K_ R. C_ dated May 1, 2004 (2 pages)
Criminal Records Check from Hillsborough County, Fl Sheriff’s Office dated July 28, 2005 (2 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     980331 - 980705  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 980706               Date of Discharge: 990319

 Length of Service (years, months, days):

         Active: 00 08 14
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 9 (GED)                           AFQT: 46

 Highest Rate: AR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NA*                  Behavior: NA              OTA: NA

Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: None

 *Not available
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 :

981203:  Psychological evaluation report by clinical psychologist, (CVN 71):               Diagnostic Summary:
 Axis I: Occupational problem
                   Axis II: Narcissistic and antisocial traits, R/I PD
                  Axis III: None
                  Axis IV: Routine military
 Axis V: GAF 75
                   Recommendations:
1. F/U on 981210 with Lt C__, Psychiatric Department to address motivation for anger management.
2. Discuss evaluation and plan with Dr S___, Flight Surgeon.

990215:  Psychological evaluation report from Navy clinical psychologist, Medical Department, USS THEODORE ROOSEVELT (CVN 71) to Commanding Officer, VAW-124:
 Diagnostic Summary:
                   Axis I: Occupational problem
 Axis II: Personality disorder, NOS, with narcissistic and antisocial features as manifested by a sense of entitlement, a tendency to take advantage of others, a lack of empathy, irritability and aggressiveness, deceitfulness, and lack of remorse.
                  Axis III: None
 Axis IV: Routine shipboard duty, partner relational issues regarding child
Axis V: Current GAF: 65
Recommend routine administrative separation.
                  
990226:  NJP for violation of UCMJ, Article 91: (2 Specs), Disobeyed a lawful order on 990203 on board USS THEODORE ROOSEVELT (CVN-71).
         Award: Forfeiture of $300.00 pay per month for 2 months (suspended for 6 months), restriction to USS THEODORE ROOSEVELT (CVN-71) for 20 days (10 days suspended for 3 months), extra duty for 20 days (10 days suspended for 3 months). No indication of appeal in the record.

990312:  Commander, Carrier Group EIGHT directed the Applicant’s discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

 020517:  NDRB documentary record review Docket Number ND01-00959 conducted. Determination: Discharge proper and equitable; relief not warranted.

[Complete discharge package not contained in service record]

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19990319 under other than honorable conditions for misconduct due to commission of a serious offense (A and B). After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D). The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (E).

Issues 1, 2. An under other than 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 nonjudicial punishment proceedings for two violations of Article 91 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 contends through his representative that “family problems” should mitigate his misconduct. While the Applicant may feel that a personal problem was the underlying cause of his misconduct, the record clearly reflects his willful misconduct. The Applicant was subject to nonjudicial punishment proceedings for two specifications of disobeying a lawful order, a serious offense, and admitted in his verbal testimony that he engaged in a “shoving match” with a petty officer. Neither the evidence of record nor the Applicant’s testimony show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Additionally, the Board determined the Applicant’s narrative reason for separation, misconduct, is appropriate. No other narrative reason could more clearly describe why the Applicant was discharged. Relief denied.

Issue 3. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. Outstanding post-service conduct, 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, is considered. The Applicant provided three enlistment references, a criminal records check, a psychiatric evaluation and a psychological evaluation as documentation of his post-service behavior and accomplishments. In order to substantiate an upgrade based on post-service, the Applicant’s efforts should have been more encompassing. For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service and evidence of child-support payments in order for consideration for clemency based on post-service conduct. The Applicant did not provide sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge. Relief denied.

The following is 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 15560C), Change 18, effective
12 Dec 97 until 29 March 2000, Article 1910-142 [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT- COMMISSION OF A SERIOUS OFFENSE .

B. In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 91, for willfully disobeying a warrant officer, noncommissioned or petty officer, if adjudged at a Special or General Court Martial.
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 .

 E. 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.





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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