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

 ex-SA, USN
Docket No. ND97-01365

Applicant’s Request

The application for discharge review, received 970909, requested that the reason for the discharge be changed to CONVENIENCE OF THE GOVERNMENT.  The applicant requested a documentary discharge review and listed the Veterans of Foreign Wars as his representative on the DD-293.

Summary of Review

A documentary discharge review was conducted in Washington, D.C. on 980831.  The NDRB determined that the discharge equitably reflects the quality of service rendered.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES (verbatim)

1.	I do not feel my command supported me. This was very evident when I was first sent to Captains Mast instead of being handled at the lowest level.  My senior petty officers and my chief did not support me.

2.	I worked very hard to do my courses and to get qualified on my duty and watch bill assignments.  I do not feel I was ever given credit for doing anything.

3.	We ask that you examine this case for fairness and equity and that you choose the discharge as appropriate.

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Active:	None
	Inactive:	USNR (DEP)		941103 - 941214	ELS*

*  ELS – Medical (psychiatric) disqualification, EPTS; not recommended for reenlistment without prior approval from the Navy Recruiting District Commanding Officer.
Period of Service Under Review:

Date of Enlistment:  941228			Date of Discharge:  960607

Length of Service (years, months, days):

	Active:  01  05  08
	Inactive:  None

Age at Entry:  22				Years Contracted:  4

Education Level:  12				AFQT:  61

NEC:  DG-9760  				Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA		Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, AFEM, B“E”R, and SSDR 

Nonjudicial Punishment(s):  4		Court(s)-Martial:  None

Days of Unauthorized Absence:  None

Character, Narrative Reason, and Authority of Discharge:

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

PART III - CHRONOLOGICAL LISTING OF SIGNIFICANT SERVICE EVENTS1

941227:	“An interview regarding physical violence has been conducted on 941227 between CO, NAVCRUITDIST Columbus and the applicant D_ R_ P_.  K. M. R_, (signed) K. M. R_, LCDR, USN, Acting” or “Authorized enlistment in, or advancement to, paygrade E-2 having completed 20 semester hours or 30 quarter hours of College credits at an accredited educational institution.  (signed) S. C. F_, PN1, USN, MLPO By Direction.” [The Board can not find a waiver for the applicant.]

950113:	Recruit Evaluation Unit, Branch Clinic 1017, Naval Hospital Great Lakes, IL:  Referred for possible adjustment disorder; “h/o insomnia, feeling ‘paranoid’.”  Clinical Psychologist deferred any diagnosis and recommended that the applicant return to full duty.

950419:	Joined USS NIMITZ (CVN-68) at Bremerton, WA. 

951005:	USS NIMITZ Medical Department:  “Pt referred to medical by division for evaluation for possible SI.  Pt has been angry about an incident that occurred while standing watch; a petty officer accused her of improper watchstanding and she has been attempting to bring him up on charges for using improper language.  She denies SI, history of SI or attempts; also denies HI.”  Diagnosed with a “Normal Exam” and directed to return to the sickbay if symptoms continue.

951014:	NJP for violation of UCMJ, Article 91:  Disrespectful in language toward a PO3 on 950929, and Article 134: Wrongfully communicate a threat toward a PO3 on 950929.
	Award:  Forfeiture of $150 per month for two months, extra duty for 20 days, and reduction to E-2.  Forfeiture of $150 per month for one month is suspended for six months.  There was no indication of an appeal in the record.

951014:	Retention Warning:  Advised of deficiencies (disrespectful in language towards a petty officer, willful dereliction in the performance of her duties as starboard aft lookout on 950929; and wrongfully communicate a threat toward a PO); notified of corrective actions and assistance available; advised of the consequences of further deficiencies, and issued a discharge warning.  Receipt acknowledged.

951031:	Punishment of forfeiture suspended at NJP on 951014 is vacated due to continued misconduct.

951031:	NJP for violation of UCMJ, Article 85 (4 specs):  Failure to go at time prescribed to her appointed place of duty, to wit: Extra duty muster in hangar bay one, at, 1745, 951014, 951019, 951024, and 951028.
	Award:  Restriction and extra duty for one day, and reduction to E-1.  Reduction suspended for six months.  There was no indication of an appeal in the record.  

960418:	NJP for violation of UCMJ, Article 89: Disrespect toward a superior commissioned officer on 960415, and Article 90: Willful disobedience of superior commissioned officer on 960415.
	Award:  Confinement on bread and water for three days, forfeiture of $250 per month for two months, and reduction to E-2.  Forfeiture of $250 per month for one month and reduction to E-2 was suspended for six months.  Three was no indication of an appeal in the record.

960426:	USS NIMITZ Medical Department:  Applicant self-referred for sleep disruption, weight loss of 20 pounds, fluctuating dieting habits, crying spells and “depression.”  Rule out adjustment disorder with depressed mood. [Consult results NFIR.]

960506:	Vacated suspended reduction to E-2 and forfeiture of $250 from NJP on 960418 due to continued misconduct.

960506:	NJP for violation of UCMJ, Article 92 (2 specs):  Failure to obey other lawful order (two unspecified incidents) on 960423.
	Award:  Forfeiture of $250 for one month, and restriction and extra duty for 15 days.  There was no indication of an appeal in the record.
 
960506:	Applicant notified of intended recommendation for discharge other than honorable by reason of misconduct due to commission of serious offenses as evidenced by violations of the UCMJ, Article 89:  Disrespect toward a superior commissioned officer on 960415; Article 90:  Willful disobedience of a superior commissioned officer on 960415; Article 91, disrespect toward a third class petty officer on 950929; Article 92 (2 specs):  Failure to obey a lawful order both on 960423; and Article 134:  Communicating a threat toward a third class petty officer on 950929; by reason of misconduct due to a  pattern of  misconduct as evidenced by your nine or more violations of the UCMJ within your current enlistment for which you have been punished under the UCMJ in violation of your administrative Counseling/Warning Page 13; and by reason of misconduct due to a pattern of misconduct as evidenced by your three or more punishments under the UCMJ within your current enlistment in violation of your administrative Counseling/Warning Page 13.  Receipt acknowledged.

960516:  	Applicant advised of her rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation and the right to submit a statement on own behalf either verbally or in writing.  Receipt acknowledged.

960519:	Applicant submitted the following statement: “12 May 1996, when I first came into the Navy I had a very positive attitude and the willingness to succeed.  I still have those qualities and I would like to continue my service in the Navy, despite the odds.  I believe my chain of command has failed me.  I do realize that I am to blame for some things and I apologize for those.  Many problems could have been avoided had I received proper counseling and guidance.  I have never received a counseling chit.  Also, I have never been to Chiefs Board or XOI.  Every time a situation arose I was always sent to captain's mast.  My situations could have been handled at the departmental-level.  I am a very hard worker and I do sincerely want to succeed.  Many shipmates, both inside the department and outside of the department, with whom I have worked with do like to work with me because of my enthusiasm and willingness to get the job done quickly and efficiently.  I do want to stay in the Navy and many people support me and respect me for not giving up.  The first time I went to mast was in September of 1995.  I was accused of not doing my job and disrespect.  The petty officer who accused me of this is well known for having an ego and trying to use his authority to get what he wants.  When the charges were first brought up, I explained to Chief B_ the situation and he seemed willing to help solve the problem.  A few minutes later, after talking with BM3 McG_, Chief B_ calls me back into the office.  He tells me that I am lying and he was going to see to it that I went to mast.  That upset me a little because he told me we could handle it at the divisional level.  I asked him why he changed his mind and told me I was lying.  His response was because BM3 McG_ is a petty officer.  Many people who know THC situation have told me I should never have went to mast.  The second time I went to mast concerned being UA from extra duty musters.  I had two musters to go when I was informed that I was going to mast for UA.  The first muster I was counted UA for was because I was on watch.  I asked Chief B_ to give me a watch bill to give to security.  He laughed and said he did not have one.  That was very upsetting because he knew he could help me and he did not.  The second muster I was counted UA for because the MA chief pulled me out of ranks and told me that I was out of uniform because I had a small piece of hair hanging below my collar in the back.  She told the mustering petty officer to mark me late for muster.  I was counted UA, however, I still did my extra duty.  The third muster I was counted UA for was because I was sick.  The next day, I asked the mustering MA if I would get into trouble for missing a muster.  He told me no it was alright because you could miss five musters and the fifth one will send you to mast.  I asked all the MA's the same question concerning how many musters could be missed ' all their responses were five.  I went to mast and informed the captain of this and he asked the MA chief.  She denied everything.  After I had went to mast I asked all the MA’s once again how many musters could be missed.  Their responses were the same, nothing had changed.  After the first time I went to mast, I asked Chief B_ if I could go to 1st Division.  He said no because I did not deserve to and I would only make him look bad.  I asked him again after my second mast if I could go to 1st Division.  He said the same thing and asked me why I wanted to go to another division.  I told him because I was not confident in my chain of command because he told me I was nothing but trouble.  I also asked him if there was any other assistance available other than the stress management class that I had take.  He said there was not.  In January of 1996 I submitted a request chit to go to 1st Division.  It was approved and in March I went to 1st Division.  Since I have been in 1st Division my attitude has improved and so has my work performance.  The third time I went to mast was for disrespecting a commissioned officer and disobeying a lawful order given by a commissioned officer.  This happened while I was doing my job.  I was taking the trash to the incinerator to be burned.  I had no idea what was going on that day.  Ultimately, I was stopped by the executive officer.  He told me that the trash was not to go to the incinerator until 0845.  He asked me what I was doing.  I told him I was just taking the trash to the incinerator like I always do without any problems.  I also told him that Deck Department gives deck hands head of the line privileges to the incinerator.  I said in a respectful manner that my watch said 0846.  I was only trying to correct any discrepancies.  The XO said I was a sea lawyer and told me to stand at attention.  I did what I was told and I tried to keep in control.  I was scared and very nervous because I did not want any trouble.  He told me I was being placed on report for disrespecting a commissioned officer.  I began to hyperventilate and I could not stop.  He ordered me to stop and told me if I did not that I would be placed on report again for disobeying a lawful order.  I could not stop and therefore I was placed on report again.  I went to mast again and I apologized.  I wanted to avoid mast and do it before I went to mast because I did not want to get kicked out on an O.T.H.  I was trying to handle it at the lowest level.  However, my department did not support me once again.  I asked the 1st Lieutenant if it was possible to handle this at the departmental level.  He told me that I do not deserve to be in the Navy because I am not Navy material.  He further stated that I failed again and I was not a team player.  He then went on to say that no one in the department wanted to work with me.  The 1st Lieutenant has never seen me working and interacting with my shipmates.  I have statements from both seamen and petty officers that discredit the 1st Lieutenant's comments.  Chief O_ was present when this conversation took place.  Once again I asked if I could get some kind of assistance to help me and I was told it was too late.  I really wanted some counseling because I think I am in a depression of some kind.  My fourth mast was concerned with me being without an escort while on liberty risk.  I do assume some responsibility for this.  I could have handled it differently.  I was escorted by ABH2 D'A_.  Before we left the ship, I was under the impression that we were going to ”hang out” together.  We got off at the pier.  I saw a friend of mine there.  The three of us went with D’A_ to a hotel.  She told me she had other plans and made me feel as if she did not want me around.  She did not tell me which room she was staying in.  She did not tell me the name of the person the room was under.  She handed my friend my I.D. card and told him to keep me out of trouble.  I asked her what was up.  She told me to go out and have fun, just do not get caught.  She also told me if I did get caught that I had better cover her or she would see to it that I got screwed over.  I asked her if she was sure about this.  She told me to go.  I was a little upset about this, not to mention the fact that I was very nervous about the situation.  At the same time I really wanted to unwind because I have not had much liberty during this cruise.  I really needed to get away for a while.  We asked her to come along and she no it was alright. My friend and I went shopping for about an hour and a half.  I told my friend that I wanted to go back to the hotel to get abh2.  We went back and we could not find her.  We saw a male there who knew her and he said she had left.  My friend and I went back into town and stopped at an open bar to buy some sodas.  A couple of people we knew invited us to go to a water park.  We went and were there for about two hours.  I was sleeping the whole time because I was tired and very hot.  My friend 'went swimming with everyone else.  I asked my friend to take me back to the hotel to try to find ABH2 one last time.  We got on a baht bus and we were dropped off at the same bar we left from.  We were on our way to the hotel when I was confronted by my master BMCM S_ wanted to know where my escort was.  I was trying to explain to him the situation and he kept cutting me off and accusing, me of drinking and I was not.  He ordered my friend to take me back to the ship.  We were on our way to the ship and we walked by the hotel where we last saw aeh2.  We saw her in the lobby and told her what had happened.  We went back to the ship and we were stopped at the brow. We went to security and I volunteered for a BAC test and a breathalizer.  An MA1 told me that it was not necessary because he could not smell alcohol and I just appeared to be very exhausted.  Chief O_ saw me and he said he did not smell any alcohol and I told him what had just happened.  The next day, I tried to explain to EMCM Santos.  He did not want to listen because he had his own idea as to what happened that day and he did not want to hear anything else.  Legal told me EMCM Santos could handle this any way he wanted and I told him this.  He did not care. He told me I was lying and he wanted me out of his Navy and I did not deserve to be wearing my uniform.  I went to mast.  I told the truth.  As a result, I was awarded $250 forfeiture for one month, a reduction in rate to E2, 15 days restriction, 3-5 days extra duty, and an O.T.H. administration separation.  ABH2 D’A_ went to mast and did not tell the truth.  She was awarded $250 forfeiture for one month.  And 30 days extra duty.  Even with all that has happened to me, I still want to stay in the navy and succeed.  I am keeping my head up high and I am still continuing to do an outstanding job performance.  I have suffered much emotional stress, but I am still trying to succeed.  My chain of command agrees that I am an outstanding worker.  I do admit that I am to blame for some of these problems.  However, had my chain of command been more supportive things would have been different.  I am seeking guidance.  If I am permitted to continue my service, I have an appointment at the navy hospital to talk with someone concerning what I believe to be a form of depression.  All along I have been doing things to improve and succeed in the navy.  I have started in that direction by taking the YN3 exam.  I am confident that I did very well on it.  The chaplains onboard are willing to help me if I stay in. I also am in the process of going to DC PMS.  BM1 F_ is willing to help me succeed because he believes that I can be fixed.  Many other petty officers feel that I can change and succeed.  I really do want to stay in the Navy.  I have a better grasp of how things are.  Everything is in perspective.  I know where I have messed up and I would like another chance to correct what needs to le corrected.  If given one last chance I will not let myself fail again.  However, if I am not permitted to stay in the service I do not think my hard work should go unnoticed.  I know I am not honorable but I am not other than honorable.  I ask that instead of being other than honorably separated, that I be given a general discharge.  I am fixable and I would like to try one last time.”

960519:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to of a serious offenses, and a pattern of misconduct.  Commanding officer’s verbatim comments:  SNM has been awarded NJP on four occasions.  Despite multiple counseling sessions at all levels of the chain of command, and numerous second chances SA P_’s continued to demonstrate little regard for authority and her military responsibilities. She has an excuse for every situation and has not yet demonstrated the maturity or personal discipline necessary to meet minimum standards of performance.  SNM possesses no potential for further naval service.  I strongly recommend that SNM be separated fm the naval service with characterization of service as other than honorable.

960530:	BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

960607:	Discharged UNDER OTHER THAN HONORABLE CONDITIONS/ PATTERN OF MISCONDUCT, authority:  Naval Military Personnel Manual, Article 3630600.

RECORDER’S NOTE:

1  The source for all entries is the service record (includes medical/dental record) unless otherwise noted.

 PART IV - EXTRACT OF PERTINENT REGULATION/LAW

A.  The Naval Military Personnel Manual, (NAVPERS 15560C, Change 9, effective 22 Jul 94 until 02Oct 96), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT, states:

1.  A member may be separated for misconduct by reason of one or more of the following circumstances:

a.  Misconduct Due to Minor Disciplinary Infractions.  A series of at least three but not more than eight minor violations (e.g. specifications) of the Uniform Code of Military Justice (UCMJ) (none that could result in a punitive discharge - see Manual for Courts-Martial, Appendix 12, and not drug related) documented in the service record, within the current enlistment, which have been disciplined by not more than two punishments under the UCMJ.  The member must have violated counseling (Article 3610250.5) prior to initiating processing.  If separation of a member in entry level status is warranted solely by reason of minor violations of the UCMJ, and the member's misconduct does not meet the eligibility requirements for any other misconduct, the processing should be under Entry Level Performance and Conduct (Article 3630200).

b.  Misconduct Due to a Pattern of Misconduct

(1)  A pattern of misconduct is defined as discreditable involvement with civil and military authorities.  The member must have violated counseling (Article 3610250.5) prior to initiating processing.  Such a pattern may include both minor and serious infractions as evidenced by:

(a)  Three or more civilian convictions within the current enlistment.

(b)  Three or more punishments under the UCMJ within the current enlistment.

(c)  Any combination of three civilian convictions and punishment(s) under the UCMJ within the current enlistment.

(d)  Three or more periods of unauthorized absence of more than 3 days duration each within the current enlistment.

(e)  Nine or more violations (e.g., specifications) of the UCMJ within the current enlistment which have been disciplined by punishment under the UCMJ.

(2)  A pattern of misconduct is defined as well by discreditable management of one's personal and financial affairs as evidenced by:

(a)  A set pattern of failure to pay just debts.  (Include financial statement prepared as specified in Article 6210140.14 when case is forwarded.)

(b)  A set pattern of failure to contribute adequate support to dependents or failure to follow orders, decrees, or judgments of a civil court concerning the support of dependents.  Include copies of court order(s), judgments, etc.

c.  Misconduct Due to Commission of a Serious Offense (processing not mandatory).  An individual may be processed for administrative separation when a punitive discharge would be authorized by the Manual for Courts-Martial for the same or a closely related offense.  Note that:

(1)  If the offense is evidenced by a general or special court-martial conviction--the findings of which have been approved by the Convening Authority--the findings of the court-martial as they relate to the administrative discharge process (basis and reason) are binding on the Administrative Board (see Article 3610260.7a).

(2)  If the offense is evidenced solely by a court-martial conviction and the court-martial Convening Authority has remitted or suspended a punitive discharge, forward the case to the same Convening Authority for endorsement according to Article 3610260.7b.

d.  Misconduct Due to Commission of a Serious Offense (processing mandatory)

(1)  An individual must be processed for administrative separation when the commanding officer believes by a preponderance of the evidence that the individual committed extremely serious misconduct that either resulted in, or had the potential to result in death, or serious bodily injury, such as but not limited to:  homicide, arson, armed robbery, etc.

(2)  Sexual Perversion.  An individual must be processed for administrative separation when an incident involves sexual behavior that deviates from socially acceptable standards of morality and decency.  Such behavior may violate military or civilian law and includes, but is not limited to:

(a)  lewd and lascivious acts;

(b)  sodomy (forcible heterosexual or child molestation); consensual and forcible homosexual acts with of-age individual shall be processed under Article 3630400);

(c)  indecent assault;

(d)  indecent acts; and

(e)  indecent exposure.

Note that if circumstances involve an incestuous relationship, commanding officers shall notify Chief of Naval Personnel (CHNAVPERS) (Pers-661/83) immediately upon discovery.  Per OPNAVINST 1752.2, Pers-661 will review the case for referral to the Family Advocacy Program; if member is not accepted, Pers-83 will direct processing for separation.  Note that acceptance into family advocacy programs run by Family Service Centers at local commands does not constitute formal acceptance into the Navy's Family Advocacy Program.

(3)  Sexual Harassment.  An individual must be processed for administrative separation following punitive actions if appropriate, on the first substantiated incident of sexual harassment involving any of the following circumstances:

(a)  threats or attempts to influence another's career or job for sexual favors;

(b)  rewards in exchange for sexual favors; or

(c)  physical contact of a sexual nature which, if charged as a violation of the UCMJ, could result in a punitive discharge.

Note that an incident is substantiated if there has been a nonjudicial punishment or court-martial conviction, or the commanding officer is convinced based on the preponderance of the evidence that sexual harassment has occurred.  All forms of sexual harassment not mentioned above must still be handled administratively (i.e.; NAVPERS 1070/613, Administrative Remarks (Page 13) counseling, letters of instruction, nonpunitive letters, remarks in evaluations, etc.).

e.  Misconduct Due to Civilian Conviction (processing not mandatory).  An individual may be processed for administrative separation based on a conviction by civilian authorities, or action taken which is equivalent to a finding of guilty, provided the offense, or closely related offense could warrant a punitive discharge (see Manual for Courts-Martial, Appendix 12), or the sentence includes confinement of 6 months or more without regard to suspension or probation.

f.  Misconduct Due to Civilian Conviction (processing mandatory).  An individual must be processed for administrative separation based on a conviction by civilian authorities, or action taken which is equivalent to a finding of guilty, which involved an offense that either resulted in, or had the potential to result in death, or serious bodily injury, such as but not limited to:  homicide, arson, armed robbery, etc., or is a sexual perversion as described in  subparagraphs 1d(2)(a) - (e).

2.  Under this article, counseling and warning as outlined in Article 3610260.5 is only required for members being processed for misconduct due to pattern of misconduct or misconduct due to minor disciplinary infractions.  The latest offense and counseling and warning must have occurred while assigned to the parent command.  Separation activities defined in Article 3640476, and other commands to which temporary duty is authorized by CHNAVPERS, are exempt from this requirement.

3.  Characterization.  Normally Other Than Honorable, but characterization as General may be assigned when warranted.  For respondents who have completed entry level status, characterization of service as Honorable is not authorized unless the respondent's record is otherwise so meritorious that any other characterization would be clearly inappropriate.  When characterization of service as Other Than Honorable is not warranted for a member in entry level status, the separation shall be described as Entry Level Separation.

4.  Reduction in Rate.  When a servicemember serving in pay grade E-4 or above is administratively separated with an Other Than Honorable characterization of service, the member shall be administratively reduced to pay grade E-3, such reduction to become effective upon separation.

5.  Procedures

a.  The Administrative Board procedure (Article 3640200) shall be used in processing all reasons, except when processing for misconduct due to minor disciplinary infractions, in which case Notification procedure (Article 3640200) may be used.

b.  Separation processing for misconduct due to civil conviction may be initiated whether or not a member has filed an appeal of a civilian conviction or has stated an intention to do so.  Execution of an approved separation should be withheld pending outcome of the appeal or until the time for appeal has passed.  The member may be separated prior to final action on appeal upon his or her request or upon direction of the Secretary of the Navy (SECNAV).

c.  Members confined in a foreign penal institution may be processed for separation, but may not be discharged or separated from the service until the completion of imprisonment and return to the United States.  In unusual cases, (i.e., life sentence without possibility of parole) such discharges or separations may be authorized by SECNAV by Reason of Best Interest of the Service (see Article 3630900).  SECNAVINST 5820.4 refers.

d.  Members must be dual or multiple processed where appropriate, (i.e., members processed for misconduct due to civil conviction must also be processed (dual) for misconduct due to commission of a serious offense if the offense for which convicted could warrant a punitive discharge).  Exceptions: 

(1)  misconduct involving only preservice, prior service, or current service homosexual conduct shall be processed only under Article 3530400;

(2)  misconduct involving only drug abuse (civil or military) shall be processed only under Article 3630620;

(3)  misconduct involving only violation of UCMJ Article 83 shall be processed only under Article 3630100.

e.  Members may be processed for separation by reason of misconduct for offenses which occur preservice or in a prior enlistment, provided the misconduct was unknown to the Navy at the time of enlistment or reenlistment and processing for fraudulent enlistment is inappropriate.  Under these unusual circumstances, Notification procedures (see Article 3640200) shall be used as the least favorable characterization of service possible for offenses which occur prior to entry into active duty or in prior enlistment is General.

f.  Officers exercising special court-martial convening authority are delegated authority (see Article 3610220) to separate members only if an Administrative Board recommends separation with a General or Honorable discharge, the member does not object to the discharge, and that characterization is consistent with guidance in Article 3610300.  In cases where member objects to separation, CHNAVPERS (Pers-83) is Separation Authority.  Regardless of an Administrative Board's recommendation, CHNAVPERS is Separation Authority for members being separated by reason of misconduct due to commission of a serious offense as evidenced by sexual perversion or sexual harassment.

g.  Forward processed case by letter of transmittal to Pers-83.  Ensure member's full name, rate, and SSN have been indicated on each page of the case.  In those cases where the commanding officer effects the separation, indicate date and characterization of separation awarded.  Refer to Article 3640200.11 for message submission option in those cases where member waives an Administrative Board, the commanding officer does not have authority to effect separation, or member objects to separation.

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, STANDARDS FOR DISCHARGE REVIEW, states, in part:

“9.2 Propriety of the Discharge

a.  A discharge shall be deemed to be proper unless, in the course of discharge review, it is determined that: 

(1) There exists an error of fact, law, procedure, or discretion associated with the discharge at the time of issuance; and that the rights of the applicant were prejudiced thereby (such error shall constitute prejudicial error if there is substantial doubt that the discharge would have remained the same if the error had not been made); or

(2) A change in policy by the military service of which the applicant was a member, made expressly retroactive to the type of discharge under consideration, requires a change in the discharge.

b.  When a record associated with the discharge at the time of issuance involves a matter in which the primary responsibility for corrective action rests with another organization (for example, another Board, agency, or court), the NDRB will recognize an error only to the extent that the error has been corrected by the organization with primary responsibility for correcting the record.

c.  The primary function of the NDRB is to exercise its discretion on issues of equity by reviewing the individual merits of each application on a case-by-case basis.  Prior decisions in which the NDRB exercised its discretion to change a discharge based on issues of equity (including the factors cited in such decisions or the weight given to factors in such decisions) do not bind the NDRB in its review of subsequent cases because no two cases present the same issues of equity.

d.  The following applies to applicants who received less than fully honorable administrative discharges because of their civilian misconduct while in an inactive duty status in a reserve component and who were discharged or had their discharge reviewed on or after April 20, 1971:  the NDRB shall either recharacterize the discharge to Honorable without any additional proceedings or additional proceedings shall be conducted in accordance with the Court’s Order of December 3, 1981, in Wood v. Secretary of Defense to determine whether proper grounds exist for the issuance of a less than honorable discharge, taking into account that:

(1) An other than honorable (formerly undesirable) discharge for an inactive duty reservist can only be based upon civilian misconduct found to have affected directly the performance of military duties;

(2) A general discharge for an inactive duty reservist can only be based upon civilian misconduct found to have had an adverse impact on the overall effectiveness of the military, including military morale and efficiency.”

C.  SECNAVINST 5420.174C, enclosure (1), Manual for Discharge Review 1984, Chapter 9, Standards for Discharge Review, paragraph 9.3, Equity of the Discharge, states, in part, that a discharge shall be deemed to be equitable unless in the course of a discharge review, it is determined that relief is warranted based upon consideration of the applicant's service record and other evidence presented to the NDRB viewed in conjunction with the factors listed in this paragraph and the regulations under which the applicant was discharged, even though the discharge was determined to have been otherwise equitable and proper at the time of issuance.  Areas of consideration include, but are not limited to:

1.  Quality of service, as evidenced by factors such as:

a.  service history, including date of enlistment, period of enlistment, highest rank achieved, conduct and proficiency ratings (numerical and narrative);

b.  awards and decorations;

c.  letters of commendation or reprimand;

d.  combat service;

e.  wounds received in action;

f.  records of promotions and demotions;

g.  level of responsibility at which the applicant served;

h.  other acts of merit that may not have resulted in formal recognitions through an award or commendation;

i.  length of service during the service period which is the subject of the discharge review;

j.  prior military service and type of discharge received or outstanding post-service conduct to the extent that such matters provide a basis for a more thorough understanding of the performance of the applicant during the period of service which is the subject of the discharge review;

k.  convictions by court-martial;

l.  records of nonjudicial punishment;

m.  convictions by civil authorities while a member of the service, reflected in the discharge proceedings or otherwise noted in the service records;

n.  records of periods of unauthorized absence;

o.  records relating to a discharge in lieu of court-martial.

2.  Capability to serve, as evidenced by factors such as:

a.  Total capabilities.  This includes an evaluation of matters such as age, educational level, and aptitude scores.  Consideration may also be given as to whether the individual met normal military standards of acceptability for military service and similar indicators of an individual's ability to serve satisfactorily, as well as ability to adjust to military service.

b.  Family and personal problems.  This includes matters in extenuation or mitigation of the reason for discharge that may have affected the applicant's ability to serve satisfactorily.

c.  Arbitrary or capricious actions.  This includes actions by individuals in authority which constitute a clear abuse of such authority and that, although not amounting to prejudicial error, may have contributed to the decision to discharge the individual or unduly influence the characterization of service.

d.  Discrimination.  This includes unauthorized acts as documented by records or other evidence.
  
PART V - RATIONALE FOR DECISION

Discussion

	After a thorough review of the records, supporting documents1, facts, and circumstances unique to this case, the Board determined that the discharge was proper and the characterization of the applicant’s service was equitable.  The discharge shall remain:  UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

	The applicant was discharged on 960607 under other than honorable conditions by reason of misconduct due to a pattern of misconduct (A, Part IV).  On 941214, the applicant was disenrolled from the Delayed Entry Program for medical (psychiatric) disqualification, EPTS.  On 941227, the acting CO, NAVCRUITDIST Columbus, OH had an interview with the applicant which the Board assumes was the authority to enlist the applicant.  On 950113, the applicant was sent to medical for evaluation of a possible adjustment disorder.  The clinical psychologist deferred any diagnosis and recommended that she return to full duty.  On 951005, the applicant was referred to medical by her division for evaluation of possible suicidal ideations because of her anger over a recent incident that occurred while standing watch.  On 951014, she had her first NJP for disrespectful language towards a petty officer and wrongfully communicating a threat to that petty officer.  On 951014, the applicant received a Retention Warning.  On 951031, she had her second NJP for failure to go to her extra duty musters.  On 960418, the applicant had her third NJP for disrespect to a commissioned officer and willful disobedience of that officer.  On 960426, the applicant self-referred for sleep disruption, weight loss of 20 pounds, fluctuating dieting habits, crying spells and “depression”.  The Board was unable to find the results of her referral in her medical record.  On 960506, the applicant had her fourth NJP for failure to obey lawful orders on two occasions.  On 960506, the applicant was informed of her (CO’s) intention to recommend her for administrative separation (ADSEP) under other than honorable conditions for misconduct due to the commission of a serious offense and a pattern of misconduct as evidenced by her NJPs.  She consulted with legal counsel prior to waiving all her rights except the right to obtain copies of the documentation forwarded to the discharge authority in support of her ADSEP.  On 960519, the applicant’s CO recommended her for ADSEP under other than honorable conditions for misconduct due to the commission of a serious offense and a pattern of misconduct.  On 960530, BUPERS directed the applicant’s discharge UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT.  The Board found the applicant’s discharge to be both proper and equitable (B and C, Part IV).

	In the applicant’s issue 1, he writes, “I do not feel my command supported me. This was very evident when I was first sent to Captains Mast instead of being handled at the lowest level.  My senior petty officers and my chief did not support me.”  There is nothing in this issue upon which to base relief.

In the applicant’s issue 2, he writes, “I worked very hard to do my courses and to get qualified on my duty and watch bill assignments.  I do not feel I was ever given credit for doing anything.”  There is nothing in this issue upon which to base relief.

In the applicant’s issue 3, he writes, “We ask that you examine this case for fairness and equity and that you choose the discharge as appropriate.”  The Board found nothing in the records, nor did the applicant provide anything to indicate or to show that there exists an error of fact, law, procedure, or discretion associated with her discharge at the time of its issuance, or that her rights were prejudiced thereby.  The Board will not grant relief on the basis of this issue.

Although not raised as an issue, the Board recognizes that while the applicant cannot undo her past mistakes, she can contribute in a positive and significant way to society (C, Part IV).  Contributions looked upon favorably by this Board include educational pursuits, employment track record, being a contributing member of society and making a positive impact in the community through volunteer work.  The applicant must prove that her post-service conduct has been above reproach and she is making a valid attempt at making amends for the misconduct he committed during the period of naval service under review.  The 15 year window during which applicants may appeal their discharges was established to allow time for establishing themselves and making these substantial, documented life style changes and community contributions which could offset and make amends for the misconduct of record.  The applicant has submitted insufficient supporting documentation that would warrant clemency.  

Recorder’s Note:

1  In addition to the service record, the following additional documentation, submitted by the applicant, was considered:

Copy of DD Form 214
Copy of Applicant’s Statement (4 pages)
Copy of NAVPERS 1070/604 (Navy Service School/Military Training
Courses).

PART VI - INFORMATION FOR THE APPLICANT

Decision

The NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

If you believe that the decision in your case is unclear, not responsive to the issues that 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 obtain a copy of DoD Directive 1332.28 by writing to:

		DA Military Review Boards Agency
		Management Information and Support Directorate
		Armed Forces Reading Room
		Washington, D.C. 20310-1809.

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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		Building 36 Washington Navy Yard
		901 M Street, SE
		Washington, D.C. 20374-5023.