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

 ex-SR, USN
Docket No. ND00-00713

Applicant’s Request

The application for discharge review, received 000515, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance hearing before the Board in the Washington National Capital Region.  The applicant listed the American Legion as his representative on the DD Form 293.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 001107.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, 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/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  (Equity Issue)  This former member opines that his psychological state at the time of his misconduct of record mitigated part of his UCMJ violations.

2.  (Equity Issue)  This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.  

Documentation

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

Copy of DD Form 214 (2 copies)
Nineteen pages from applicant's service/medical record (2 copies)
Certificate of License to preach dated December 21, 1997
Certificate from Computer Dynamics Institute dated May 1993 to July 1993
Character reference dated July 18, 2000
Character reference undated
Copy of applicant's birth certificate
Diploma from Computer Dynamics Institute dated March 29, 1994
Character reference dated August 1, 2000
Earnings statement from InfiNet Company dated May 5, 2000
Copy of applicant’s resume

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: None

Period of Service Under Review:

Date of Enlistment:  890211		Date of Discharge:  911008

Length of Service (years, months, days):

	Active:    02  01  23
	Inactive:  None

Age at Entry:  19			Years Contracted:  8

Education Level:  12			AFQT:  42

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.27 (3)	Behavior:  3.33 (3)		OTA:  3.20

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

890816:	Applicant ordered to active duty for 36 months under the Active Mariner Program.

910522:	NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ Article 123: Altered a document with intent to defraud, to wit: identification card.
	Award:  Forfeiture of $250 per month for 1 month, restriction and extra duty for 3 days.  No indication of appeal in the record.

910603:	Incident/complaint report.  Complete copy found in service record.

910717:	NJP for violation of UCMJ, Article 121 (5 specs): Larceny of personal property, obtaining services under false pretenses; violation of UCMJ Article 134 (2 specs): Communicating a threat to petty officer.
	Award:  Restriction for 60 days, reduction to SA.  No indication of appeal in the record.

910724:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of convenience of the government due to personality disorder and misconduct due to the commission of a serious offense.

910724:  	Applicant advised of his 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 to submit statements.

910814:	NJP for violation of UCMJ, Article 86 (4 specs): Unauthorized absence, violation of UCMJ Article 90: Disobeying a lawful order from a commissioned officer.
	Award:  Forfeiture of $200 per month for 1 month, reduction to SR.  No indication of appeal in the record.

910903:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and convenience of the government due to personality disorder.  Commanding officer’s comments (verbatim): SR (applicant) has no place in the Navy.  He has exhibited severe personality disorders and suicidal tendencies.  His misconduct has included a series of thefts from shipmates and others, all of which were clearly proven, and all of which he either denied or rationalized.

His unsuitability was shown by the following sequence of events in June 91:

04 June   -  Seen by USS HAYLER Medical Dept, SN J_ when, faced with Mast for larceny, stated that he wanted to "...go pray and ask the Lord to forgive him and then kill himself."'  HM3 S_ referred him to the NAS Brunswick Medical Clinic.

04  June  -  NAS Brunswick Physician's Assistant, LT B_ recorded: "Member has had a number of personal setbacks in recent days.  Voicing strong suicidal ideation to ship HM.  Recommendation: To Maine Medical Center ASAP."

05 June   -  At the Maine Medical Center Acute Psychiatry Clinic, Dr. M_ reported [applicant's] status as 'Not acutely suicidal - but depressed and at risk if not hospitalized." and recommended "...the safe sanctuary of a psychiatric hospital."

05 - 18 June  -  Hospitalized at Jackson Brook (Psychiatric) Institute with a diagnosis of  "Major depression severe episode"'.  No personal records are held but his bill was $7,846.19.

18 - 25 June  -  Was subsequently medevaced to Walston Army Hospital at Fort Dix, New Jersey, where MAJ B_, MD (Psychiatrist) reported: "It is likely... that under further stress he would once again resort to threats of suicides given his history of antisocial behavior and his poor attitude and motivation for duty.  I strongly recommend command give serious consideration to an administrative separation.

26 July  -  Was seen by LCDR C_, MD (Psychiatrist) at Naval Hospital Newport, RI, who did not state that separation was required based on psychiatric grounds, but "...that his motivation is likely to remain low, and that he may become a burden to his command."

Based on his well documented unsuitability, administrative separation is strongly recommended.  Based on his serious misconduct, the characterization of his discharge is recommended to be under Other than Honorable conditions.

910918:	NJP for violation of UCMJ, Article 134: Breaking restriction.
	Award:  Forfeiture of $100 per month for 1 month, extra duty for 14 days.  No indication of appeal in the record.

910927:	BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

970714:	NDRB documentary record review Docket Number ND00-00395 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 911008 under other than honorable conditions for misconduct due to commission of a serious offense (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

In response to applicant’s issue 1, the Board found that the applicant’s “psychological state” is not an issue upon which the NDRB can grant relief.  When reviewing a discharge, the Board does consider the extent to which a medical or psychological problem, diagnosed or undiagnosed while on active duty, might effect an applicant's performance and ability to conform to the military's standards of conduct and discipline.  The Board does not consider the circumstances surrounding the applicant's diagnosis or any psychological treatment given to the applicant to be of sufficient nature to exculpate the applicant from his misconduct of record.  In fact, the Board has seen no connection between the applicant's psychological state and his misconduct which began before his psychological state and continued after his condition was, according to numerous medical documents, resolved.  Relief is not warranted. 

The applicant’s representative submitted the following as issue 2: (EQUITY ISSUE) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (C, Part IV).  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, to the extent that 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.  The applicant’s post-service accomplishments, while highly commendable,  are insufficient documentation of good character and conduct and do not mitigate his misconduct of record.  Therefore no relief will be granted. 

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560A), Change 8, effective 
21 Aug 89 until 14 Aug 91, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 121, for larceny, if adjudged at a Special or General Court-Martial.

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 "afls14.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023