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

ex-AR, USNR
Docket No. ND01-00061

Applicant’s Request

The application for discharge review, received 001017, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant listed American Legion as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010808.  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/ PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  (Equity Issue)  This former member proffers that a Borderline Personality Disorder and Bipolar disorder, diagnosed subsequent to service, contributed to and mitigated his misconduct of record.  On this basis, he avers that upgrade of his character of service to honorable is warranted.

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 this application.

Documentation

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

Letter from Applicant
Copy of DD Form 214
Copy of Hospitalization Summary from Bryce Hospital (11pgs)
Copy of Physician Attestation Statement from University of Alabama Hospital 
Copy of Discharge Summary from University of Alabama at Birmingham Medical Center/Hospital (40pgs)

PART II - SUMMARY OF SERVICE

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

	Active:   USN 		None
	Inactive: USNR (DEP)	None

Period of Service Under Review:

Date of Enlistment:  940602		Date of Discharge:  951103

Length of Service (years, months, days):

	Active:    01  03  20
	Inactive:  00  00  19

Age at Entry:  18			Years Contracted:  3 

Education Level:  12			AFQT:  74

Highest Rate:  AA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.10 (2)	Behavior:  3.30 (2)		OTA:  3.60

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM 

Days of Unauthorized Absence:  24 

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

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

Chronological Listing of Significant Service Events:

940621:	Ordered to active duty for 36 months under the Airman Apprenticeship Program. 

950301:	Retention Warning from [SEACONRON THREE ZERO, FPO AA]:  Advised of deficiency (Violation of UCMJ, Article 86 (Absent from unit), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

950301:	NJP for violation of UCMJ, Article 86: Without authority, absent himself from his unit on or about 1500, 950216, and did remain so absent until 2350, 950217 [1day/R].
Award:  Forfeiture of $427.00 per month for 2 months (suspended for 60 days), restriction to Naval Air Station, Cecil Field, Jacksonville, FL for 30 days, extra duty for 30 days.  No indication of appeal in the record.

950406:	NJP for violation of UCMJ, Article 92: Failed to obey a lawful order issued by LT H_____ by wrongfully consuming alcoholic beverages on or about 950319.
Award:  CCU for 30 days, forfeiture of $284.00 per month for 4 months.  No indication of appeal in the record.

950407:	Retention Warning from [SEACONRON THREE ZERO, FPO AA]:  Advised of deficiency (Violation of UCMJ, Article 92 (Violation of a Written Order), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

950920:	NJP for violation of UCMJ, Article 86: On or about 950828, without authority absent himself from his place of duty, 0730 muster at Galley, located at Naval Air Station, Cecil Field, Jacksonville, FL and did remain so until on or about 950920 [23days].
	Award:  Forfeiture of $427.00 per month for 2 months, restriction to Naval Air Station, Cecil Field, Jacksonville, FL for 45 days, extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

950926:	Sea Control Squadron THIRTY notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by three NJP's in the current enlistment period.

951003:  	Applicant advised of his rights and having elected to consult 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.

951006:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. 

951027:	BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT 
REGULATION/LAW

Discussion

The applicant was discharged on 951103 under other than honorable conditions for misconduct due to a pattern of misconduct (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).

The applicant’s representative submitted the following as issue 1: (Equity Issue) This former member proffers that a Borderline Personality Disorder and Bipolar disorder, diagnosed subsequent to service, contributed to and mitigated his misconduct of record.  On this basis, he avers that upgrade of his character of service to honorable is warranted.  A medical or psychological diagnosis, whether proper or improper is not an issue upon which the NDRB can grant relief.  When reviewing a discharge, the NDRB does consider the extent to which a medical or psychological problem might effect an applicant’s performance and ability to conform to the military’s standards of conduct and discipline.  The NDRB does not consider the circumstances surrounding the applicant’s stated condition nor the medical treatment given to the applicant to be of sufficient nature to exculpate the applicant’s misconduct.  In fact, the NDRB sees no direct connection between the applicant’s misconduct and his personality disorder.  Relief is not warranted.

The following is provided for the applicant’s edification.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (E).  The applicant must be aware that 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, may be considered by the NDRB.  The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is highly recommended.

Pertinent Regulation/Law (at time of discharge)

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

B.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 92, for failure to obey a lawful order, 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 “afls10.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