ex-FN, USN

Current Discharge and Applicant’s Request


Applicant’s Request:     Characterization change to:     
         Narrative Reason change to:     

Summary of Service

Prior Service:
Inactive:        USNR (DEP)       20000512 - 20000534     Active:           NFIR - 19990609 NFIR

Period of Service Under Review:

Date of Current Enlistment: 20000525    Age at Enlistment:
Period of Enlistment: Years Extension
Date of Discharge: 20020708     Highest Rank/Rate: FN
Length of Service: Year(s) Month(s) 14 Day(s)
Education Level:        AFQT: 43
Evaluation Marks:        Performance: 2.5 (2)     Behavior: 2.0 (2)       OTA: 2.5

Awards and Decorations (per DD 214):    

Period of UA: 20020514-20020523, 10 days

NJP:

- 20010308:      Article
         Awarded: Suspended:

- 20010403:      Article 3 Specifications
         Specification 1: Failed to go to restricted persons muster 1630, 20010316
         Specification 2: Failed to go to restricted persons muster 1800, 20010316
         Specification 3: Failed to go to restricted persons muster 0600, 20010321
         Awarded: Suspended:

- 20010508:      Article
         Article
         Awarded: Suspended:

- 20010825:      Article 86 (Absence without leave; 20010808-20010812, 5 days)
         Article 87 (Missing movement, 20090809)
         Awarded: Suspended:

- 20011106:      Article
         Article
         Awarded: Suspended:

SCM:

SPCM:

CIVIL ARREST:

CC:

Retention Warning Counseling:

- 20010308:      For VUCMJ Article 86 – UA from unit 1 to 5 February 2001; and VUCMJ, Article 90 – Disobey lawful order from a commissioned officer on 2 February 2001

Types of Documents Submitted/reviewed

Related to Military Service:
         DD 214:           Service/Medical Record:           Other Records:  

Related to Post-Service Period:
         Employment:               Finances:                 Education/Training:     
         Health/Medical Records:           Rehabilitation/Treatment:                 Criminal Records:       
         Personal Documentation:           Community Service:                References:     
         Department of VA letter:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 33, effective 14 August 2001 until
21 August 2002, Article 1910-122, Separation By Reason of Convenience of the Government - Personality Disorder(s).

B. Naval Military Personnel Manual, (NAVPERS 15560C), Change 22, effective 15 December 1998 until
21 August 2002, Article 1910-140, SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications.

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

Applicant’s Issues

1.       The Applicant contends that his discharge characterization was inequitable because he was hospitalized against his will and was not given a chance to explain why he was there to his captain.

Decision

Date: 20150625            Location: Washington D.C.        Representation:

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall .

Discussion

As a result of the Applicant’s claim that he was involuntarily hospitalized and that this hospitalization impacted his discharge, and in accordance with U.S. Code, Title X, Section 1553 (e)(2), the Naval Discharge Review Board included a member who is a physician, clinical psychologist, or psychiatrist. The Applicant’s service record documents the Applicant was diagnosed with adjustment disorder with mixed disturbance of emotions and conduct and antisocial personality disorder while serving in the armed forces.

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) warning and for of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, 6 specifications), Article 87 (Missing movement, one specification), Article 128 (Assault, one specification), and Article 134 (General article, two specifications). The Applicant’s record of service also documents several incidents of misconduct at the time of his separation that his command chose not to adjudicate in order to expedite the Applicant’s discharge. This misconduct included desertion charges, drug abuse (THC, codeine, and opiates) confirmed by a urinalysis, a domestic violence event, and disorderly conduct in which he destroyed several items of furniture in his estranged wife’s residence. Based on the Applicant’s diagnosis of personality disorder by competent medical authorities and the offenses committed by the Applicant, command administratively processed for separation. The NDRB did not have the Applicant’s complete administrative separation package to determine whether or not the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review. However, the Applicant’s Commanding Officer’s separation recommendation letter indicated he was notified of separation using the notification procedure due to both his pattern of misconduct and diagnosis of personality disorder. The Applicant’s mental health counseling notes at the time of his separation also annotated that the Applicant was being separated for both narrative reasons.

: (Decisional) () . The Applicant contends that his discharge characterization was inequitable because he was hospitalized against his will and was not given a chance to explain why he was there to his captain. The record contained no evidence of any wrongdoing by the Applicant’s commanding officer or anyone else in the discharge process. The NDRB presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary.

The NDRB determined that the Applicant’s narrative reason for separation was appropriately approved as personality disorder. Separation for personality disorder is not appropriate when separation is warranted for any other reason (e.g., member meets minimum criteria for misconduct processing). The Applicant’s Commanding Officer’s separation letter clearly lists the reason for processing the Applicant for separation as both due to a personality disorder and due to his pattern of misconduct using the notification procedure. In addition to the significant adjudicated misconduct in the Applicant’s record, both the Commanding Officer’s separation letter and official medical documentation from his attending psychologists document pending unadjudicated misconduct drug use including THC, codeine, and opiates per a urinalysis conducted upon his checking into the Naval Hospital for psychiatric treatment. This documentation indicates that prior to the Applicant’s final discharge he was in an absence without leave period and ultimately had been declared a deserter having entered into an unauthorized absence period for over a month including at least two separate involuntary mental health hospitalizations. The NDRB did note that the Applicant apparently returned to his unit and signed his final DD-214 upon discharge. Furthermore, psychological records from this time indicate the Applicant fraudulently entered into the Navy after discharge from the Army.

Post-service VA notes indicate claims of combat action that are not supported by the Applicant’s service or medical records to include claims of service during the Vietnam War and that he was ordered to execute a pregnant civilian woman during operations in Kosovo. The VA notes indicate they found the Applicant’s claims to be false citing that he could not have participated in the Vietnam War as he was not born until after the war ended and that his official record did not contain validation of his claimed overseas service. The Applicant’s naval service record indicated he performed maintenance duties for his ship’s boilers while the ship supported Operation ENDURING FREEDOM. Nothing in his record indicates he participated in combat actions or was physically under threat of harm by enemy combatants during his naval service. Additionally, VA records document that the Applicant has been subject to multiple post-service arrests for illegal drug possession and battery as well as a 21 month prison stay for the second degree murder of his nephew’s father which illustrates that the Applicant’s in-service misconduct was not an aberration.

Due to the Applicant’s psychological diagnoses, the NDRB considered the extent to which the Applicant’s diagnoses might have affected his performance and ability to conform to the military’s standards of conduct and discipline. However, the NDRB does not consider the circumstances surrounding the Applicant’s diagnoses to be of sufficient nature to excuse the Applicant’s misconduct. The NDRB specifically cites the staff psychiatrist from Naval Medical Center, San Diego’s narrative summary, which states: “Regarding the alleged offense(s), the undersigned are of the opinion that the accused, at the time of the alleged offense(s) possessed the ability to conform his behavior to the requirements of law. The undersigned are therefore of the opinion that at the time of the alleged offense(s), the accused’s ability to adhere to the right was not impaired. It is the further opinion of the undersigned that the accused does possess sufficient mental capacity to understand the nature of the proceedings against him and therefore is able to conduct and/or cooperate in his own defense. The undersigned are of the opinion that punishment, including confinement, will not be deleterious to the accused mental or physical health.” The NDRB finally noted that the Applicant appears to still have a diagnosis of personality disorder from the VA.

In consideration of the Applicant’s Commanding Officer’s administrative separation letter annotating narrative reasons for separation including both personality disorder and a pattern of misconduct, the NDRB assumed regularity in the notification process and voted, by majority rule, that the Applicant’s discharge was proper and equitable given the discharges of the majority of sailors under similar circumstances. An upgrade is neither warranted nor appropriate. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall remain and the narrative reason for separation shall remain PERSONALITY DISORDER.

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. The Applicant is directed to the Addendum for additional information.

ADDENDUM: Information for the Applicant

Complaint Procedures : If you believe 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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC 20301-4000. You should read Enclosure (5) of the Instruction 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 Instruction 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil . ”

Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s date of discharge. The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge. Representation at a personal appearance hearing is recommended but not required. There are veterans organizations such as the American Legion and the Disabled American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 , or http://www.secnav.navy.mil/mra/bcnr/Pages/default.aspx for further review.

Service Benefits: The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

Employment/Educational Opportunities : The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code: Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. An unfavorable “RE-CODE” is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

Medical Conditions and Misconduct : DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, the medical board report is filed in the member’s terminated health record. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons. Only the BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. Outstanding post-service conduct, 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, is considered during Board reviews. Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle. The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate in-service misconduct was an aberration and not indicative of the member’s overall character.

Issues Concerning Bad-Conduct Discharges (BCD ): Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a special court-martial, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership: The names and votes of the members of the NDRB 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