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NAVY | DRB | 2005_Navy | ND0501555
Original file (ND0501555.rtf) Auto-classification: Denied


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

ex-MNSN, USN
Docket No. ND05-01555

Applicant’s Request
The application for discharge review was received on 20050921. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area. The Applicant designated the American Legion as the representative on the DD Form 293 and the Disabled American Veterans on the attachment. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060717. 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 of the discharge shall not change. The discharge shall remain General (Under Honorable Conditions) by reason of misconduct due to a pattern of misconduct .

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“I was told I was being discharged for A personality disorder that was determined by a Navy doctor, I was also told I was being separated at the convince of the government. I was given a General “Under Honorable Conditions”. I feel that since I was discharged for A personality disorder and that it was for the convince of the government that I should receive A Honorable Discharge.”

 Applicant’s Remarks: (Taken from the DD Form 293.)

“I really hope and wish that you will consider changing my discharge based on my claim. I believe I was given an unfair discharge. At the time I had a pregnant wife getting ready to have a baby and then I get discharged from the service like that. I’m not trying to get any benefits or anything like that. I would just like to have it changed to fix an injustice. Thank you so much for your time.”

 Documentation
In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Letter of Recommendation from E_ J_, Site Manager, Day and Zimmerman Security Services, dtd September 2, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20010122 - 20010724      COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 20010725             Date of Discharge: 20040123

 Length of Service (years, months, days):

         Active: 02 05 29
         Inactive: None

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

 Age at Entry: 18

 Years Contracted: 4 (12 month extension)

 Education Level: 12                                 AFQT: 42

 Highest Rate: MNSN
Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.0 (1)                       Behavior: 3.0 (1)                 OTA: 2. 83

 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)/ PATTERN OF MISCONDUCT, authority: MILPERSMAN, Article 1910-140 (formerly 3630600).
Chronological Listing of Significant Service Events :

010122:  Pre-service waiver for resident burglary age 13 granted.

011128:  NJP for violation of UCMJ, Article 92 (2 specs): Failure to obey lawful written order.
         Award: Forfeiture of $375 per month for 2 months. No indication of appeal in the record.

020220:  Branch Medical Clinic, Ingleside, TX: Applicant found physically fit for correctional custody.

020730:  NJP for violation of UCMJ, Article 92, Failure to obey order or regulation.
 Date offense: 02Jul28.
          Award: Forfeiture of ½ months pay for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.

030124:  NJP for violation of UCMJ, Article 86 - Absence without leave 0615-0630, 17Jan03.
 Violation of UCMJ, Article 92 - Failure to obey order or regulation.
          Award: Forfeiture of $645 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.

040109:  Medical evaluation by W_ C. B_, Lt, MSC, USNR, Psychologist, Naval Hospital, Corpus Christi
          AXIS I: Malingering.
         AXIS II: Narcissistic Personality Disorder
         AXIS III: Medical conditions: None noted.
         AXIS IV: Psychosocial: Marital and occupational problems.
         AXIS V: Global Assessment of Functioning: 75.
         Assessment:
         Recommendation: MNSN L_(Applicant) is unsuitable for military service due to mental conditions that existed prior to service. These symptoms make him inherently unreliable, unstable and prone to erratic behavior when things do not go his way. He thus represents a serious ongoing threat to himself and others if retained on active duty. However, he is not considered to be mentally ill, (no medically boardable condition), but manifest a long-standing disorder of character and behavior which is of such severity as to render him unsuitable for continued military service in the US Navy. Short-term psychiatric treatment for this condition is of limited benefit, and long-term treatment is not available within the military medical system. The member is deemed fit only for immediate processing for administrative separation, which should be initiated upon completion of any pending legal or judicial action and handled expeditiously in compliance with NAVMILPERS Manual 1910-122. It is also recommended that the member be placed in a non-deployable status, not have access to any weapon or explosive device, not operate government vehicles, work with classified materials, nor be involved in fieldwork.
040123:  NJP for violation of UCMJ, Article 115 - Malingering.
         Award: Process for immediate administrative separation. No indication of appeal in the record.

040123:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct - pattern of misconduct and convenience of the government - personality disorder.
040123:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.
040123:  Applicant found physically qualified for separation.

 040205:  Commanding Officer, USS DEFENDER (MCM 2) recommended discharge with a general (under honorable conditions). Commanding Officer’s comments: “MSSN L_(Applicant) has been offered numerous opportunities to conform to Naval standards. This command placed MNSN L_(Applicant) in the “Second Chance” program, after his third appearance at Captain’s Mast, hoping that he would demonstrate a willingness to do better. The member has been given an enormous amount of support, mentoring, and leadership throughout the chain of command. However, he is incapable of embracing the ideal of conformity within a military structure. It is the opinion of my Executive Officer and I, that MNSN L_(Applicant) is incapable and unwilling to conduct himself in a manner conducive to good order and discipline. Therefore, I am exercising my authority to separate the member legally to ensure good order and discipline, as well as a safe environment, are maintained onboard USS DEFENDER. I thereby hold his characterization of service to be General (Under Honorable Conditions) and Not Recommended For Retention In The Naval Service. Enclosures (1) through (4) are forwarded as supporting documentation.”

Service Record contains a partial Administrative Discharge package.
Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20040123 by reason of misconduct due to a pattern of misconduct (A) with a service characterization of general (under honorable conditions). 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 (B and C). The Board presumed regularity in the conduct of governmental affairs (D).

 The Applicant contends that his discharge should be honorable since he was told that he was being separated by reason of convenience of the government due to personality disorder. The Applicant’s statement is partially correct. He was dual processed. On 20040123, the Applicant was notified of the command’s intent to separate him with a general discharge by reason of misconduct due to pattern of misconduct and convenience of the government due to personality disorder. By regulation, a discharge shall be deemed proper, unless it is determined that an error of fact, law, procedure, or discretion has substantially prejudiced the rights of the Applicant. The Applicant was discharged with a general (under honorable conditions) by reason of misconduct due to pattern of misconduct. A review of the Applicant’s service record convinced the Board that a preponderance of evidence exists to support the Applicant’s basis for separation by virtue of his four NJPs on 20011128, 20020730, 20030124, and 20040123. The Applicant was awarded NJP for violations of UCMJ Article 86 (Absence without leave); Article 92 (Failure to obey order or regulation); and Article 115 (Malingering). On 20040205, the Commanding Officer, USS DEFENDER (MCM 2), advised Commander, Navy Personnel Command, that the Applicant was discharged with a general discharge by reason of misconduct due to pattern of misconduct. Based upon the above review and a presumption that the Commanding Officer, USS DEFENDER, locally directed discharge, the Board unanimously concluded that the Applicant’s discharge processing was in substantial compliance with applicable statutes, rules, and regulations. If the Applicant feels that his administrative separation processing was flawed, he bears the burden of establishing his issues through the presentation of substantial and credible evidence. There is no evidence in the record, nor has the Applicant produced any evidence, to challenge the propriety and equity of his discharge. Thus, the Board concluded that relief is not warranted.

While 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 service, the Board 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. Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. The Applicant submitted one character reference for consideration. The Applicant’s efforts need to be more encompassing to include evidence of continuing educational pursuits, verifiable employment records, documented community service, and certification of non-involvement with civil authorities. At this time, there is not sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in the characterization of discharge. And so, no relief is granted on this basis.

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 post-service accomplishments or any other evidence related to the 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), re-issued October 2002, effective 22 Aug 2002 until Present, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - 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 .

D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs .

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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