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NAVY | DRB | 2005_Navy | ND0500990
Original file (ND0500990.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-RMSA, USN
Docket No. ND05-00990

Applicant’s Request
The application for discharge review was received on 20050523. The Applicant requests her characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review. The Applicant did not designate 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 General (Under Honorable Conditions) by reason of misconduct due to commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 The Applicant submitted no issues.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Service 4)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
Inactive: USNR (DEP)     19941031 – 19941108              
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19941109             Date of Discharge: 19960229

 Length of Service (years, months, days):

         Active: 01 03 21
         Inactive: None

 Time Lost During This Period (days):

         Unauthorized absence: None
         Confinement:              None

 Age at Entry: 21

 Years Contracted: 4

Education Level: 13                                 AFQT: 84

 Highest Rate: RMSA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 1.0 (1)              Behavior: 1.0 (1)                 OTA: 1.0

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal


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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MILPERSMAN, Article 3630600.
Chronological Listing of Significant Service Events :

950126:  Counseling: Advised of deficiency (performance and responsibilities), notified of corrective actions and assistance available.

 950201:  Applicant to unauthorized absence at 1430 on 950201.

 950201:  Applicant from unauthorized absence at 1630 on 950201 (2 hours, SIQ).

950208:  Assistant Officer in Charge, Communications School designates RM1 R_ C_ as Investigating Officer into case of SA K_ G. J_ (Applicant).
950216:  Preliminary investigation of report chit ICO SA K_ G. J_ (Applicant). Findings: SA K_ G. J_ (Applicant) did wrongfully and willfully fail to obey SIQ order.

 950221:  Applicant demanded trial by Court Martial in lieu of Non-Judicial Punishment.
950302:  Applicant to unauthorized absence at 2200 on 950302.

 950303:  Applicant from unauthorized absence at 0005 on 950303 (2 hours and 5 minutes).
950329:  Applicant to unauthorized absence at 1545 on 950329.

 950329:  Applicant from unauthorized absence at 1610 on 950329 (25 minutes).
950426:  Retention Warning: Advised of deficiency (NJP this date resulting from violations of UCMJ Article 86), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
950426:  NJP for violation of UCMJ, Article 86 (3 specs): Unauthorized absence.
         Specification 1: In that Seaman Apprentice K_ G. J_ (Applicant), U.S. Navy, Service School Command, San Diego, California, on active duty, did, on or about 1430, 01 February 1995, without authority, absent herself from her place of duty, to wit: Bachelor Enlisted Quarters # 91, Room C 228, located at Naval Training Center, Sick In Quarters, San Diego, California, and did remain so absent until on or about 1630, 01 February 1995.
 Specification 2: In that Seaman Apprentice K_ J_ (Applicant), U.S. Navy, Service School, Command, San Diego, California, on active duty, did, on or about 2200, 02 March 1995, without authority, absent herself from her organization, to wit: Bachelor Enlisted Quarters #91, 2100 Curfew, located at Naval Training Center, San Diego, California, and did remain so absent until on or about 0005, 03 March 1995.
          Specification 3: In that Seaman Apprentice K_ J_ (Applicant), U.S. Navy, Service School, Command, San Diego, California, on active duty, did, on or about 1545, 29 March 1995, without authority, absent herself from her organization, to wit: Physical Training, Bachelor Enlisted Quarters # 91, located at Naval Training Center, San Diego, California, and did remain so absent until on or about 1610, 29 March 1995.
         Additional Charge: violation of article 91:
         Specification: In that Seaman Apprentice K_ J_ (Applicant), U. S. Navy, Service School Command, San Diego, California, having received a lawful order from RM2 (AW) C_ S_, U. S. Navy Service School Command, San Diego, California, a Petty Officer, then known by the said SA J_ (Applicant) to be a superior Petty Officer, “The uniform for Physical Training is Navy issued sweatpants, a sweatshirt or a T-shirt, and running shoes”, an order in which it was her duty to obey, did on board Naval Training Center, San Diego, California, on or about 29 March 1995, willfully disobey the same.
         Award: Restriction for 7 days and forfeiture of pay for 7 days totaling $223.44, reduction to E-1 (suspended for 6 months). No indication of appeal in the record.

950801:  Psychological evaluation at MHU BMC NTC San Diego: This 22 year old single female SA USN with 9 months of continuous active duty was referred for Mental Health Evaluation of depression and suicidal risk. Overall risk considered moderate but acceptable at this time, subject to escalation if she feels stressed.
         Impression:
          AXIS I: Dystnymia, EPTE
         AXIS II: Personality disorder, NCS, with borderline features
         Assessment: Fracture R hand, under treatment.
Recommendation: 1. The member is not considered mentally ill, but manifests a longstanding disorder of character and behavior, which is of such severity as to render the individual incapable of serving adequately in the Navy. Although the member is not presently considered actively suicidal or homicidal, she is judged to represent a continuing danger to self or others if retained in the naval service. The member is deemed fit for returns to duty for immediate processing for administrative separation
2. Suicide risk moderate and acceptable at present.     

950803:  Admission to Naval Medical Center, San Diego, CA:
Diagnosis: Major depression, borderline personality D/O.
          History of present illness: She was directly admitted to the locked in-patient ward after being seen at the Naval Training Center Mental Health Unit 3 times in the last 3 days for “angry outburst,” and a questionable suicide gesture of taking 6 Percocet for a headache on 31 July 95 in which she is unsure of her intent.           

950804:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by all violations under the UCMJ during current enlistment and other designated physical or mental conditions as evidenced by diagnosis made by competent military medical authority which concluded that your medical condition is of such severity as to render incapable of serving adequately in the naval service.
950823:  Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board and to obtain copies if documents. Applicant did not object to this separation.
951031:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to a commission of a serious offense and has a designated physical or mental condition, that such misconduct warranted separation, and recommended discharge with a under honorable conditions (general).
951222:  Commanding Officer, Service School Command, San Diego, recommended to Chief of Naval Personnel, that the Applicant be discharged with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense and other designated physical or mental conditions. Commanding Officer’s comments: “RMSA J_ (Applicant) is being processed for separation by reasons of misconduct due to commission of a serious offense, and other designated physical or mental conditions. Based on the circumstances of this case, I concur with the Board’s majority recommendation that RMSA J_ (Applicant) be separated from the naval service with a discharge characterization of General. It is my opinion that although the misconduct can be construed as serious offense, a characterization under Other Than Honorable conditions is not warranted in this case. However, aside from her prior misconduct, RMSA J_ (Applicant)’s overall performance and service has been honest and faithful. Furthermore, RMSA J_ (Applicant) was evaluated by competent military medical authority as representing a continuing risk to herself and others, and the disorder rendered her incapable of serving adequately in the naval service, Therefore, I have determined RMSA J_ (Applicant) has failed to demonstrate the exceptional potential required for future naval service and directed that administrative separation proceedings commence. Accordingly, a discharge characterization under General conditions is warranted in this case”.

960129:  BUPERS, di rected the Applicant's discharge with a general (under honorable conditions) by reason of misconduct due to a commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19960229 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of general (under honorable conditions). 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).

When the service of a member of the U.S. Navy has met the standard of acceptable conduct and performance, 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 outweigh the positive aspects of the member's military record. The Applicant’s service was marred by non-judicial punishment for violations of UCMJ Article 86 (unauthorized absence, 3 specifications) and Article 91 (willfully disobey a petty officer). A violation of Article 91 is defined as the commission of a serious offense, hence the misconduct by commission of a serious offense for which the Applicant was separated. Separation under these conditions generally results in a less than honorable characterization of service. Relief is not warranted.

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 has not provided documentation for the Board to consider.

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 her 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 - COMMISSION OF A SERIOUS OFFENSE.

 B. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 91 (willfully disobeying a petty officer).

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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