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NAVY | DRB | 2005_Navy | ND0500981
Original file (ND0500981.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-PCSN, USN
Docket No. ND05-00981

Applicant’s Request
The application for discharge review was received on 20050524. The Applicant requests his characterization of service received at the time of discharge changed to honorable. The Applicant requests a documentary record discharge review. The Applicant did not list a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051013. After a thorough review of all 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 characterization of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“My Discharge was inequitable because it was based on one Incident In the 9 or so years I was in. I’ve been remorseful for the Incident ever since I left. I was diagnosed with Panic Attacks shortly after Discharge. It was not a known common ailment at the time. This is Probably why I did what I Did also I was having marital Issues at the time. All this Built up until I Didn’t know want to Do and I wish I hadn’t Done what I DID (AWOL) upon my return to the USS Comstock I was Frustrated and Lost at a New Command and that also exacerbated My Problems.
I have regretted my actions since I got discharged.
The Discharge I received has not hindered me in finding a Job or my Livelihood.
I need to recover my dignity and heal this wound.
I think of my Decision every Day and I think Its about time to Repair what I’ve Done and I Sincerely Hope you can Help me make My Life and My Families Life Better By Letting me hold my head High again. I have always Been Proud to Be an American that served In the Arkansas National Guard, And United States Navy I went to two of our Armed services Because I Love our country as you Do.
I Just need Help to finish my Time here in a respectable manner. Thank you for your Time

Sincerely
J_ J. F_ (Applicant)”
[signed]

Applicant provided the following Remarks:

 “I have been employed with Tyson Foods since my Discharge and I have advanced to Environmental Supervisor. I have been active in my community service and I have finished my Education. I’ve also went to Trade school and received a waste water License class III By the State of Arkansas.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (88 NOV 16 – 93 JUN 28) (Service 2) (2 copies)
Applicant’s DD Form 214 (85 FEB 26 – 88 NOV 15) (Service 2) (2 copies)
Applicant’s Enlisted Performance Record
Applicant’s Diploma from Arkansas High School, dtd September 12, 1995
Arkansas State Department of Education Official Report of test results, dtd September 11, 1995
Certificate from Department of Pollution Control and Ecology, dtd July 25, 1996
Certificate of Completion of 32 hours- 3.2 CEU’s for Intermediate Wastewater O & M dtd February 17, 1997
Certificate from Department of Pollution Control and Ecology, dtd February 20, 1997
Memorandum from T_ T_, Water Quality Supervisor, dtd March 4, 1997
Certificate of Completion of 40 hours of First Response Hazardous Spills Hazmoper Training, University of Arkansas Community College at Hope, dtd May 16, 1997
Certificate of Completed hours for Intermediate Wastewater O & M, dtd September 15, 1997
Certificate from State of Arkansas Department of Pollution Control & Ecology, Wastewater Treatment Operator, dtd September 18, 1997
Leadership & Professional Certification from Tyson Leadership College, undated

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     850220 - 850225  COG
         Active: USN                        850226 - 881115  HON

 Period of Service Under Review :
Date of Enlistment: 881116               Date of Discharge: 930628

 Length of Service (years, months, days):

         Active: 04 07 13         (08 06 04 total service)
         Inactive: None

 Age at Entry: 23                          Years Contracted: 4 (24 month extension)

 Education Level: GED                       AFQT: 49

 Highest Rate: PC2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.9 (6)              Behavior: 3.8 (6)                 OTA: 3.8 (6)

 Military Decorations: None

 Unit/Campaign/Service Awards: Meritorious Unit Commendation (2), Battle “E” Ribbon (2), Sea Service Deployment Ribbon, Armed Forces Expeditionary Medal, Overseas Service Medal, Good Conduct Award (2), National Defense Service Medal

 Days of Unauthorized Absence: 30

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

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

 Chronological Listing of Significant Service Events :

881116:  Applicant reenlisted on this date onboard USS Constellation (CV-64) for a term of 4 years.

911925:  Applicant extended enlistment for a an additional 24 months.
930322:  Unauthorized absence from USS Comstock (LSD-45) at 0725, this date.

 930323:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 930323 having been an unauthorized absentee since 0725, 930322 from USS Comstock (LSD-45).

 930421:  Applicant surrendered at TPU San Diego, at 1100 this date.

 930422:  Report of Return of Deserter (NAVPERS1600-2). Having been an unauthorized absentee since 0725, 930322, surrendered to military authorities at 1130, 930421 at TPU, Naval Station San Diego (30 days).

930423:  Member returned to USS Comstock (LSD-45), 1630 this date.

 930429:  NJP for violation of UCMJ, Article 86: Unauthorized absence from his parent command, violation of UCMJ, Article 87 (4 Specs): In that he missed ship movements on 930322, 930405, 930413, and 930419, violation of UCMJ, Article 92: Derelict in the performance of his duties in that he willfully turned over the keys to the post office to an unauthorized person.
         Award: Forfeiture of $630.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-4. No indication of appeal in the record.

 930429:  Psychiatric evaluation performed at Fleet Mental Health Unit: 27 year old white male with 8 years of continuous active service. Consult requested, suicidal ideation.
Assessment:      AXIS I   - Adjustment Disorder
 AXIS II - Dependent traits
                   AXIS III - None known
                   Recommendations: Member is judged to be a high risk to harm himself.

 930503:  Diagnosis:       AXIS I - Alcohol Dependence, Adjustment disorder
                           AXIS II - Dependent personality
                           AXIS III – None
         Recommendations: Fit for full duty, but unsuitable for continued service as a result of his alcohol dependence and refusal for treatment, and personality disorder. This patient is likely to become suicidal under stress. Recommend admin sep. Not currently/actively suicidal/homicidal but prone to suicide under stress. Patient has been told to seek medical assistance if he becomes suicidal. Cautioned not to drink to cope with stress, though patient refuses inpatient treatment. Patient informed of recommendation.
930520:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by Commanding Officer’s NJP punishment on April 29, 1993 and by reason of convenience of the government due to a personality disorder.

930520:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
         Applicant did not elect to make a written statement.
930527:  Commanding Officer USS Comstock (LSD-45) 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. Commanding Officer’s comments: PC F_’s (Applicant) misconduct had a serious negative impact on the morale of this command. He cast aside the trust and responsibility inherent in his rate with little regard for the consequences. In addition, he was medically diagnosed as having a personality disorder that is a danger to himself and others with a physician’s recommendation for administrative separation and further recommend that the characterization of service be Other Than Honorable.

930616:  BUPERS 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 19930628 under other than honorable conditions for misconduct due to commission of a serious offense (A and B). After a thorough review of all available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

To be legally sufficient, a finding of misconduct due to the commission of a serious offense requires only a showing, by a preponderance of the evidence, that misconduct, which would warrant a punitive discharge if tried by special or general court-martial, has occurred. An under other than honorable conditions discharge is warranted when significant negative aspects of a member's conduct or performance outweigh the positive aspects of the member's military record. The Applicant’s service was marred by nonjudicial punishment (NJP) for violations of UCMJ Article 86 (unauthorized absence, 30 days), Article 87 (missing movement, 4 specifications) and Article 92 (dereliction of duty). Each violation of Article 86 (in excess of 30 days), 87, and 92 is defined as the commission of a serious offense, the misconduct for which the Applicant was discharged. Applicable regulations require that a Sailor’s characterization of service be based upon the member’s total performance of duty and conduct during the current enlistment. Furthermore, there are circumstances where conduct or performance of duty reflected by a single adverse incident may form the basis of characterization for a Sailor’s overall service. Separation under these conditions generally results in an under other than honorable characterization of service. Relief is not warranted.

The Applicant contends that he was not responsible for his behavior because his panic attacks were not diagnosed nor treated. When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline. Nevertheless, the Applicant bears the burden of presenting substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced evidence, to support his contentions. The Applicant was diagnosed, by qualified medical officer, as possessing a long-standing disorder of character and behavior of such severity as to interfere with serving adequately in the Navy. He was considered a continuing risk to do harm to himself or others. The NDRB does not consider the Applicant’s stated condition, the implied failure to properly diagnosis, or the lack of medical treatment given the Applicant to be of sufficient nature to exonerate the Applicant’s misconduct. In fact, the NDRB sees no connection between the Applicant’s misconduct and his alleged medical condition. The record clearly reflects his willful misconduct, demonstrating he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

The NDRB recognizes that serving in the U. S. Navy is very challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. The fact is many Sailors and Marines experience marital and family hardships during their service. Most go on to serve their country with honor and integrity thus earning an honorable discharge. In fairness to those Sailors and Marines, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. The NDRB found that the Applicant's service was equitably characterized. Relief denied.

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 Naval service. The NDRB is authorized 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. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. The Applicant provided his GED completion certificate and 10 certificates of training in wastewater management and pollution control, as post service documentation for the Board to consider. After careful consideration, the Board concluded the Applicant’s post-service achievements have been insufficient to mitigate his misconduct while in the Naval service. Relief denied.

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 5, effective
05 Mar 93 until 21 Jul 94, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

 B. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 87, for unauthorized absence for a period in excess of 30 days] 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 .

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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