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NAVY | DRB | 2005_Navy | ND0501297
Original file (ND0501297.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-AMSAR, USN
Docket No. ND05-01297

Applicant’s Request
The application for discharge review was received on 20050727. The Applicant requested a documentary discharge review and that her characterization of service be changed to honorable. In the acknowledgement letter, the Applicant was informed that she was approaching the 15-year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington D.C. area. Applicant did not respond. The Applicant did not designate a representative on the DD Form 293. However, subsequent to the application, the applicant obtained representation by the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060406. 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 Honorable Conditions (General) by reason of misconduct due to a pattern of misconduct .

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Applicant’s issues, as stated on the application:

“My discharge was inadiquate because I was refused a discharge recommended by psych at 32 nd St. base in San Diego, CA. and was forced out under pattern of conduct instead.”
Documentation
The following additional documentation was submitted by the Applicant, for the Board’s considered in addition to the service and medical record:
Character Reference letter from L_ D_ (Applicant’s Mother, undated)
Employment Reference letter from J_ E. F_, dated September 01, 2005 (Nurse Manager)
Character Reference letter from T_ L. S_, dated October 09, 2005
Character Reference letter from N_ R_, Sheriff, dated September 01, 2005
Background Check letter from B. J. M_, Records Technician, Office of the Sheriff, San Juan County, New Mexico, dated October 10, 2005
Background Record Inquiry from B. J. M_, Records Technician, Office of the Sheriff, San Juan County, New Mexico, dated October 10, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19900226 – 19900528               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19900529             Date of Discharge: 19911230

 Length of Service (years, months, days):

         Active: 01 07 02
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: none
         Confinement:              none

 Age at Entry: 20

Years Contracted: 4

Education Level: 12                                 AFQT: 59

 Highest Rate: AMSAA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.1 (2)              Behavior: 3.1 (2)                 OTA: 2 .80 (1)

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

900530:  Retention Warning issued to the Applicant by Recruit Training Command, Naval Training Center. Advised of deficiency (defective enlistment and induction due to fraudulent entry into naval service). Any further deficiencies in performance or conduct may result in processing for administrative separation.
910325:  Applicant unauthorized absent from 0730 until 0805 on 910325 (35 minutes, surrendered).
910410:  NJP (VP-31) for a violation of the UCMJ, Article 86 (unauthorized absence, on 910325).
 Award: Forfeiture of $422.55 per month for 1 month and restriction to NAS Moffett Field for sixty days. Punishment suspended for six months. No indication of appeal in the record.
910926:  Fleet Mental Health Unit, Branch Medical Clinic, Naval Station San Diego:
         Recommendations: Member fit for return for to duty, process for administrative discharge, responsible for actions, and considered unsuitable for retention. Member is not considered mentally ill, suicidal risk is low. However, member is judged to represent a danger to self or others if retained in the USN.
         Diagnosis: Occupational problems and sever personality disorder.

911017:  Violation of UCMJ, Article 86 (unauthorized absence, place of duty) by failing to go to her appointed place of duty at 2330.

911024:  NJP (HC-11) for a violation of the UCMJ, Article 86 (unauthorized absence, on 911017),
Award: Restriction to NAS North Island for 30 days, extra duty for 30 days. No indication of appeal in the record
911025:  Retention Warning issued to the Applicant from Helicopter Combat Support Squadron Eleven. Advised of deficiency (numerous violations of the UCMJ, Article 86), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
911111:  Violation of UCMJ, Article 86 (unauthorized absence, place of duty) by failing to go to her appointed place of duty, restricted muster at 0800 and Article 92 (fail to obey a lawful order) by failing to go to her appointed place of duty, restricted muster at 0800.

911115:  NJP (HC-11) for violations of the UCMJ, Article 86 (unauthorized absence, place of duty on 911111) and Article 92 (fail to obey a lawful order).
         Award: Forfeiture of $376 per month for 2 months, restriction to NAS North Island for 45 days, extra duty for 45 days, and reduction to E-1. No indication of appeal in the record.

911217:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under honorable conditions (general) by reason of misconduct due to a pattern of misconduct as evidenced by three prior nonjudicial punishments.

911217:  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.
911226:  Commanding Officer, Helicopter Combat Support Squadron 11 informed Chief of Naval Personnel of the Applicant’s discharge under honorable conditions (general) by reason of pattern of misconduct as evidenced by three prior nonjudicial punishments. Commanding Officer’s comments: “AMSAR C_ (Applicant) is a below average worker whose performance continues to deteriorate. She seems incapable of arriving on time for work, and numerous attempts at counseling and a prior nonjudicial punishment at this command have had no effect. She performs her duties with a lack of motivation and attention to detail. A psychological evaluation revealed no mental illness, but adjudged her as being unsuitable for the service. Despite every attempt to correct her shortcomings, she continues to be an unacceptable burden to the command and to the Navy. I am separating AMSAR C_ (Applicant) under General conditions with an RE-4 reenlistment status.” This letter did not mention the required retention warning, which was issued on 9110125.

911230:  Applicant discharged with a characterization of service as under honorable conditions (general) by reason of a pattern of misconduct.

920117:  BUPERS informed Commanding Officer HELSUBRON ELEVEN that service member did not qualify for discharge. “Member may not be processed for a pattern of misconduct until the member has been counseled by their parent command concerning deficiencies and has been afforded an opportunity to overcome those deficiencies.”
PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19911230 by reason of misconduct due to a pattern of misconduct (A) with a service characterization of under honorable conditions (general). 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 (B and C).

To permit relief, a procedural impropriety or inequity must have occurred during the discharge process. When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. An under honorable conditions (general) characterization of service 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. T he Applicant’s service was marred by three nonjudicial punishments for violations of the UCMJ, Article 86 (unauthorized absence, 3 specifications) and Article 92 (failure to obey) . MILPERSMAN Article 3630600 defines the misconduct for which the Applicant was discharged, “pattern of misconduct”, as 3 or more punishments under the UCMJ within the current enlistment. Furthermore, reference (A) directs that the service of a member separated for a pattern of misconduct shall normall y be characterized as under other than honorable conditions. Characterization of service as honorable is not authorized unless the Applicant's record is otherwise so meritorious that any other characterization would be clearly inappropriate. In the Applicant’s case the record clearly documented the pattern of misconduct for which she was separated. The Board could discern no impropriety or inequity and therefore considered the discharge proper and equitable. Relief denied.

 The Applicant contends that she should have been processed as recommended by her “psych”. The Applicant was diagnosed with a “personality disorder” on September 26, 1991. 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 her misconduct or that she should not be held accountable for her actions. The MILPERSMAN specifically states, “separation for personality disorder is not appropriate when separation is warranted for any other reason” i.e. misconduct. 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 her service despite the presence of a diagnosed personality disorder. Therefore, the NDRB considered the Applicant’s discharge proper and equitable. Relief denied.
The Board noted an irregularity in the Applicant’s service record. Following the Applicant’s discharge BUPERS informed HELSUBRON ELEVEN Commanding Officer that the Applicant my not be discharged via a pattern of misconduct as she had not been officially counseled at her last command. However, the official record contains a counseling from the Applicant’s last command dated October 25, 1991. This counseling was not referenced in the Commanding Officer’s letter informing BUPERS of the Applicant’s discharge. The Board found the BUPERS ruling to have been made based upon incomplete information. Therefore, he NDRB found no impropriety in the Applicant's discharge process. Relief 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 submitted a police records check and four character reference letters for the Board’s consideration. The Applicant’s post service conduct was not considered sufficient to mitigate her misconduct by 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 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, effective 15 Aug 91 until
04 Mar 93), 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 V, Para 502, Propriety .

 C. 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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