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

 ex-SR, USN
Docket No. ND01-00229

Applicant’s Request

The application for discharge review, received 001215, requested that the characterization of service on the discharge be changed to general under honorable conditions.  The applicant requested a personal appearance hearing discharge review before the board in the Washington National Capital Region.  The applicant listed the Disabled American Veterans as his representative on the DD Form 293.  An amended application, received 010405 and signed by civilian counsel, requested that the characterization of service on the discharge be changed to Honorable and the reason for the discharge be changed to Expiration of Enlistment.  The application listed a civilian attorney as the representative on the amended DD Form 293.

Decision

A personal appearance hearing was conducted in Washington, D.C. on 010420.  After a thorough review of the testimony, records, supporting documents, facts, and circumstances unique to this case, 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/Misconduct - Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

Issues listed on the amended application (DD Form 293)

THE PROPRIETY OF THE DISCHARGE

ISSUE A-I.  THE NAVY FAILED TO SCRUPULOUSLY ADHERE TO THE MANDATORY REQUIREMENTS OF SECNAVINST 1910.4A, PARTS 4.C.1.a., 4.C.2.a.,
MILPERSMAN, ARTICLE 3640200

ISSUE A-II.  APPLICANT'S COMMANDING OFFICER (CO) COMMITTED PREJUDICIAL ERRORS OF LAW BY INCORRECTLY INTERPRETING UCMJ, ARTICLE 111- DRUNKEN OR RECKLESS OPERATION OF VEHICLE, AIRCRAFT, OR VESSEL, IN CONJUNCTION WITH R C-M. 1003 (c) (1) (B) (i) (LIMITS ON PUNISHMENTS FOR AN OFFENSE NOT LISTED IN PART IV, MCM, 1995), AND BY REASON OF THOSE ERRORS OF LAW, THAT CO INCORRECTLY CONCLUDED THAT APPLICANT'S CIVILIAN CONVICTION FOR RECKLESS DRIVING WAS AN OFFENSE WHICH WAS CLOSELY RELATED TO AN ARTICLE 111 CONVICTION OF RECKLESS OPERATION OF A VEHICLE, WITH NO PERSONAL INJURY INVOLVED, WHICH AUTHORIZED A BAD CONDUCT DISCHARGE, PURSUANT TO ARTICLE 111 e. (2) AND R.C.M. 1003 (c) (1) (B) (i).

ISSUE A-III.  APPLICANT'S CO INCORRECTLY DESCRIBED THE PAGE 13 DATED 10 OCTOBER 1995, AS A PAGE 13 COUNSELING/WARNING.  APPLICANT'S RECKLESS DRIVING CONVICTION WAS NOT MISCONDUCT, AND THERE WAS NO PUNISHMENT AUTHORIZED UNDER THE UCMJ.  IF THAT PAGE 13 HAD ANY LEGAL EFFECT UNDER NAVY REGULATIONS, IT WAS MERE NONPUNITIVE CENSURE.

ISSUE A-IV.  APPLICANT'S CO COMMITTED A PREJUDICIAL LEGAL ERROR, OR ABUSED DISCRETION, BY THE UNREASONABLE MULTIPLICATION OF NJP CHARGES AND PUNISHMENTS.

THE EQUITY OF THE DISCHARGE

ISSUE B-1.  IN EXECUTIVE ORDER 13140,1999 AMENDMENTS TO THE MANUAL FOR COURTS-MARTIAL, UNITED STATES, SIGNED 06 OCTOBER 1999, EFFECTIVE 01 NOVEMBER 1999, APPENDIX 25, MANUAL FOR COURTS-MARTIAL, UNITED STATES, (2000 EDITION), PART III, MIL. R. EVID. 513, PSYCHOTHERAPIST-PATIENT PRIVILEGE, APPLICABLE TO COMMUNICATIONS AFTER 01 NOVEMBER 1999, WAS ADDED TO THE MILITARY RULES OF EVIDENCE.  THAT PRIVILEGE IS NOW AFFORDED TO ALL MEMBERS IN NJP ACTIONS.  APPLICANT'S CO USED APPLICANT'S INCRIMINATING STATEMENTS WHICH HE MADE TO A PSYCHOTHERAPIST, WHO THEN ENTERED HIS STATEMENTS INTO HIS MEDICAL RECORDS, AS THE BASIS, AND THE SOLE BASIS, FOR THE SECOND MARCH 1996 NJP ACTION CHARGING APPLICANT WITH VIOLATION OF UCMJ, ARTICLE 112a, WITH THREE SPECIFICATIONS ALLEGING WRONGFUL USE OF A CONTROLLED SUBSTANCE.  IF MIL, R. EVID, 513 HAD BEEN IN EFFECT IN MARCH 1996, APPLICANT'S INCRIMINATING STATEMENTS TO A PSYCHOTHERAPIST COULD NOT HAVE BEEN USED BY APPLICANT'S CO AS THE BASIS FOR THE SECOND MARCH 1996 NJP, NOR COULD THAT CO HAVE USED APPLICANT'S STATEMENTS MADE TO A PSYCHOTHERAPIST AS THE BASIS FOR INITIATING THE INQUIRY WHICH RESULTED IN APPLICANT'S STATEMENT OF HOMOSEXUAL CONDUCT 25MAR96.

ISSUE B-II.  AT THE TIME OF APPLICANT'S COMMISSION OF EACH OF THE ACTS OF MISCONDUCT WHICH THE NAVY COLLECTIVELY CHARACTERIZED AS A "PATTERN OF MISCONDUCT," APPLICANT HAD AN UNDIAGNOSED ORGANIC MENTAL DISORDER WHICH WAS MANIFESTED BY KNOWN AND DISCLOSED SYMPTOMS OF ORGANIC BRAIN DAMAGE CAUSED BY LONG-TERM EXPOSURE AND OVEREXPOSURE TO TOXIC AND NEUROTOXIC CHEMICALS IN PAINTS, VARNISHES, LACQUERS, SOLVENTS, AND OTHER PAINT RELATED PRODUCTS WHICH APPLICANT WAS ROUTINELY REQUIRED TO USE IN THE PERFORMANCE OF HIS DUTIES AS A DECK SEAMAN ABOARD THE USS EISENHOWER, WHICH LONG-TERM EXPOSURE AND OVEREXPOSURE WAS DIRECTLY CAUSED BY THE NAVY'S FAILURE TO COMPLY WITH MANDATORY SAFETY REGULATIONS.

Documentation

In addition to his Navy records (service record and health record) the following additional documentation, submitted by the applicant, was considered:

BRIEF OF APPLICANT prepared by J_ J. B_, Attorney for Applicant, undated with Argument, Issues, Conclusion, Appendix A and Appendix B.

Letter from Disabled American Veterans dated December 4, 2000
Letter from applicant dated January 13, 1999
Neurobehavioral and Neurotoxicological Assessment of applicant dated October 4, 1999 (36 pages)
Copy of R_ M_ S_  Ph.D. professional career bio
Copy of L_ V_ M.D. professional career bio
Copy of applicant' documentary review decisional document
Letter from applicant dated March 1, 1999
Copy of Neurology Clinic Disability Report dated November 11, 1999
Letter of Recommendation, Warren Central Senior High School from assistant principal dated February 1, 1999
Neurologist, Dr. L - V - 's statement dated January 22, 1999
Post-Military Discharge Timeline
Medical report of first seizure episode on September 22, 1997
NeuroToxicity's report on the International Workshop on Neurobehavioral Effects of Solvents held in 1985 (NIOSH was a participant)
NIOSH's Current Intelligence Bulletin on Organic Solvent Neurotoxicity, March 31,1987
Material Safety Data Sheet on JP-5 jet fuel and DevGrip non-skid (5 pages)
Timeline of Service Record and Medical Events (4 pages)
Applicant's letter to Senator T_ L_ of January 15, 1999
History/Research/Issues from applicant
Transcript of personal hearing to predetermine medical benefits, Dept of Veterans Affairs, Jackson, MS date February 3, 1999 (24 pages)
Copy of DD Form 214

DOCUMENTS SUBMITTED BY APPLICANT DAY OF HEARING
DOCUMENT 12A 
Original letter report dated 14 December 2000 from J B M, M.D.
DOCUMENT 14
Navy Medical Surveillance Questionnaire regarding previous exposure to potential physical or chemical hazards dated 14 February 1994.
DOCUMENT 15
Navy respiratory protection/hazardous materials program questionnaire dated 13 March 1995.
DOCUMENT 16
Discharge summary, University Hospital, Jackson MS, (Applicant), dated 11/2/76.  Hemolytic uremic syndrome.
DOCUMENT 17
Navy enlistment questionnaire, showing navy awareness that paint fumes are mind altering substances.
DOCUMENT 18
Original letter report dated 27 March 2001 from T J. C, M.D. M.P.H.
DOCUMENT 19
Exposure history, 15 February 1994 to 28 February 1996
APPENDIX A-1
Affidavit of medical records summary accuracy from D B, RHIT dated 29 March 2001.

APPLICANT'S ADDITIONAL DOCUMENTS

DOCUMENT A
Letter from Department of the Navy, Office of Legislative Affairs, In Reply Refer To 0 1 Sep 1999, to United States Senator T_ L_, Constituent, (applicant), delivering to Senator L_ therewith the six enclosed Material Data Safety Sheets (MSDS) identified therein, which Senator Lott then delivered to Applicant's mother, S_ H_, for the use of Applicant, which MSDSs are identified herein as Documents I through 6.
DOCUMENT 1
MSDS ---- Devgrip 138 HR
DOCUMENT 2
MSDS ---- Amercoat 3203
DOCUMENT 3
MSDS---- Devflex 601
DOCUMENT 4
MSDS---- F150, type III Green Primer, Compound A
DOCUMENT 5
MSDS ---- F 150, type III Green Primer, Compound B
DOCUMENT 6
MSDS --- N-5113 White SI Alkyd
DOCUMENT 7
Occupational Health Guidelines for Petroleum Distillates (Naphtha), September 1978
By the U.S. Department of Health & Human Services and the U.S. Department of Labor
DOCUMENT 8
Current Trends Organic Solvents in the Workplace, May 15, 1987 36(18):282-3 By NIOSH
DOCUMENT 9
NIOSH ---- Organic Solvent Neurotoxicity, March 31, 1987, Current #48
DOCUMENT 10
Neurotoxicology, Volume 7, Number 4
International Workshop on Neurobehavioral Effects of Solvents (1986)
DOCUMENT 11
Journal of Medicine-Volume 36, Number 10, October 1994-
A review of Recent Research on Health Effects of Human Occupational Exposure to Organic Solvents - A Critical Review-By E_ L_ B_, MD, NWH, Director of Public Health Practice Program Office, Centers for Disease Control and Prevention, Atlanta, Georgia
DOCUMENT 12
Letter Report dated 14 December 2000 from J_ B_ M_, M.D., Jackson Nephrology Associates--Kidney Disease-Hypertension-Dialysis-
Department of the Navy Review Board
Re:  (applicant)
(SS number deleted)
DOCUMENT 13
The Merck Manual
Copy of Book Cover, plus pertinent pages referenced and quoted in Applicant's Brief

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	930212 - 931003	COG

Period of Service Under Review:

Date of Enlistment:  931004		Date of Discharge:  960522

Length of Service (years, months, days):

	Active:    02  07  19
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  69

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.40 (1)	Behavior:  3.40 (1)		OTA:  3.60

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, AFEM, SWASM w/Bronze Star, MUC, SSDR, AFSM

Days of Unauthorized Absence:  17 

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:

940705:	Applicant to unauthorized absence from USS DWIGHT D EISENHOWER (CVN 69), Norfolk, VA since 0430, 5Jul94.

940710:	Applicant from unauthorized absence at 0800, 10Jul94 (5 days).

940712:	Applicant to unauthorized absence from USS DWIGHT D EISENHOWER (CVN 69) since 0420, 12Jul94.

940713:	Applicant from unauthorized absence 1500, 13Jul94 (1 day).

940801:	Applicant to unauthorized absence from 0700 to 0835, 1Aug94 (1 hour and 35 minutes/surrendered).

940802:	Applicant to unauthorized absence 0545 to 0830, 2Aug94 (2 hours, 45 minutes/surrendered).

940803:	Applicant to unauthorized absence 0700-1045, 3Aug94 (3 hours and 45 minutes/surrendered).
	
940813:	NJP for violation of UCMJ, Article 86 (5 specs): Spec 1: Unauthorized absence from ship 0430, 5Jul94 to 2030, 8Jul93, Spec 2: Unauthorized absence from appointed place of duty, to wit: divisional morning muster on or about 0545, 12Jul94, Spec 3: Unauthorized absence from ship from 0700-0835, 1Aug94, Spec 4: Unauthorized absence from the ship from 0545-0830, 2Aug94, Spec 5: Unauthorized absence from ship from 0700-1045, 3Aug94.
	Award:  Forfeiture of $450 per month for 1 month, restriction and extra duty for 15 days.  Forfeiture suspended for 6 months.  No indication of appeal in the record.

940815:	Retention Warning from USS DWIGHT D EISENHOWER:  Advised of deficiency (Commanding Officer's nonjudicial punishment on 13Aug94 for 5 specifications of unauthorized absence.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	    
941008:	Applicant to unauthorized absence from 0700-0800, 8Oct94 (1 hour/surrendered).

950920:	Civil conviction: Hampton General District Court (Traffic Division), Charge 1: Reckless driving
	Charge 2: Failure to wear a seatbelt.
	Charge 3: Driving with a suspended license
	Sentence: Charge 1: Fined $100.00, driver's license suspended for 90 day, court cost; Charge 2: Fined $25.00, Charge 3: Fined $100.00, 30 days in jail, driver's license suspended for 90 days.  Jail sentence suspended for 2 years.

951010:	Retention Warning from USS DWIGHT D. EISENHOWER: Advised of deficiency (civil conviction on 20 Sep 95), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

960216:	Unauthorized absence from USS DWIGHT D. EISENHOWER from 0600, 16Feb96.

960227:	Surrendered at Portsmouth Naval Hospital at 2300, absence not excused, charged with 11 days lost time.

960228:	Naval Medical Center, Portsmouth, (NMCP) VA: Date of Admission - 960228 - Pt "thinking about killing myself".  History of present illness obtained by voluntary interview with pt and available records.  This was first NMCP psychiatric admission for this 20-year-old single male with 28 mos of continuous active duty.  Pt states he started feeling depressed since June of '95 when he "came out of the closet" and told people he was homosexual, and subsequently got harassed greatly.  The pt is currently UA since Feb 15 at which time he took 15 OTC sleeping pills (?) in an attempt to commit suicide.  He states he was supposed to be at work on the 16th but slept until that evening and since he was already UA for a day he decided to extend that absence.  He has had multiple suicide attempts in the past since last June (cutting wrists with razor blades) and has had homicidal ideation in the past since June as well.  The pts friends brought him to the ER this evening when they were afraid that he might commit suicide.  He has been feeling depressed intermittently since June and this has been becoming greater in severity, also complains of decreased appetite, decreased sleep (3 hrs night), anhedonia, and decreased concentration.  The pt cannot contract for safety outside of the hospital but willingly contracts in the hospital.  The pt denies any current suicide or homicide ideations.  Although the pt now drinks about 1 beer per month he has a history of much heavier drinking in which before last April he would drink a minimum of 2 times a week getting intoxicated each time.  Also when in foreign ports last year he would drink to intoxication whenever on liberty.  But when the pt returned from med cruise last April he felt he should not drink that much.  The pt states he first used marijuana when he was 13 years of age then stopped until last September when he started using it about once per week.  The pt also states since December he has been using amphetamines, cocaine and LSD, at least one of them per day since December.  He states he has no money secondary to spending all his money on drugs and despite having no money he demonstrated an inability to stop by prostituting himself in order to get money so he could do drugs.  Was seen by a mental health professional for ADHD when the pt was 10 years and when the pt was 13 years of age for what he says were problems, including his mother and aunt who both currently see psychiatrists for unknown disorders.  He also states prior to last June he has had brief thoughts of suicide ideation intermittently in the past but has never attempted or formulated a plan prior to June.  Pt was admitted to ward 3E where he was afforded individual, group, and milieu therapy and biopsychosocial services.  Serial mental status examinations revealed no evidence of psychosis, organicity, major mood, anxiety or dissociative disorder.  He was considered competent to participate in discharge planning and did so actively.  At the time of discharge, the pt was not suicidal, homicidal or psychotic and had received the maximum benefits from inpatient hospitalization.
Diagnosis: AXIS I - Polysubstance Dependence (ETOH, Amphetamine,
Cocaine, LSD, THC), AXIS II - None, AXIS III - None
    
960321:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 16Feb96 until 27Feb96.
Award:  Forfeiture of $490 per month for 1 months, restriction and extra duty for 30 days, reduction to SA.  No indication of appeal in the record.

960325:	Applicant's Voluntary Statement: "I am a homosexual.  I have sexual and emotional relationships with men.  I feel I have always been gay b/c even before I ever had sex I had sexual dreams about people of the same gender as myself with very few or no females in them.  Although I have had sexual relation with females I find males much more satisfying.  I have never had any type of sexual relationship with any male member of the United States Armed Forces.  I feel I cannot change who or what I am for anyone else or the U.S. Navy.  I have never showed public display of effection (sic) with a male b/c I know this does offend some people and I could be tried by NJP for doing so.  In contrary to paperwork from Portsmouth Naval Hospital I have never had sex with a male or female in exchange for money of any type of gifts.  These gift were the only way he knew how to show effection and we were in a commit relationship from April 1995 until Feb 1996.  I feel I need to be separated from the United States Navy b/c of constant harassment by co-workers and supervisors, a fear for my personal safety due to written treats dealing with my sexuality, and I am tired of living a lie in the United States Navy.”

960328:	NJP for violation of UCMJ, Article 112a (3 Specs): Spec 1 - wrongful use of controlled substance, to wit: amphetamines; Spec 2 - wrongful use of a controlled substance, to wit: cocaine; Spec 3 - wrongful use of a controlled substance, to wit: LSD.
Award: Forfeiture of $437 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

960328:	CO, USS DWIGHT D EISENHOWER notified applicant of intended recommendation for discharge under Other Than Honorable conditions by reason of: Misconduct due to Drug abuse as evidenced by all drug abuse incidents in your current enlistment; misconduct due to a Pattern of Misconduct as evidenced by all punishments under the UCMJ in your current enlistment; misconduct due to Commission of a Serious Offense as evidenced by all serious offenses in your current enlistment; misconduct due to Civilian Conviction as evidenced by your civilian conviction in Hampton, VA, General District Court (Traffic); and by homosexual conduct as evidenced by your statement that you are a homosexual or bisexual, or words to that effect, which creates a rebuttable presumption that you engage in, or intend to engage in homosexual acts and by engaging in, attempting to engage in, or soliciting another to engage in a homosexual act or acts.

960328:	Applicant advised of his rights and having elected not 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.  Applicant did not object to the separation.

960415:	Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due to Drug abuse, misconduct due to a Pattern of Misconduct, misconduct due to Commission of a Serious Offense, misconduct due to Civilian Conviction and by reason of homosexual conduct.  Commanding officer's comments (verbatim): "SR (applicant)'s misconduct is incompatible with naval service.  I recommend SR (applicant) be expeditiously discharged from the Navy with an Other Than Honorable discharge by reason of misconduct due to drug abuse, misconduct due to a pattern of misconduct, misconduct due to commission of a serious offense, misconduct due to civil conviction and by reason of homosexual conduct."

960502:	BUPERS directed the applicant's discharge under Other Than Honorable conditions by reason of Misconduct due to a Pattern of Misconduct.

000110:	NDRB documentary record review Docket Number ND99-00579 conducted.  Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 960522 under other than honorable conditions for misconduct due to a pattern of misconduct (A).  The Board presumed regularity in the conduct of governmental affairs (B).  After a thorough review of the testimony, records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

The counsel for the applicant presented six issues for the Board’s consideration, four issues of propriety and two of equity. 

In the applicant’s first issue, that the Navy failed to scrupulously adhere to the mandatory provisions of the SECNAV instruction the Board found this argument failed to demonstrate any restriction of the applicant’s rights.  Although lacking references to specific MILPERSMAN paragraphs, the 960328 notice of proposed administrative board action given to applicant provided sufficient due notice and information concerning the reasons for his proposed administrative separation.  The applicant’s ability to contest his proposed administrative separation was not affected by the omission of specific paragraph citations. Relief on this basis is denied.

In considering the second issue, that the applicant’s Commanding Officer incorrectly interpreted the Uniform Code of Military Justice (UCMJ) in arriving at the decision that the applicant’s conviction for reckless driving in Hampton, Virginia General District Court, is closely related to an Article 111 conviction, the Board disagrees.  In comparing the Virginia reckless driving statute (Applicant’s Brief, page 23) with Article 111 of the UCMJ,  the Board found that Article 111 – Drunken or Reckless driving, MCM Part IV, para 35, does in fact directly address the offense of reckless driving and that the maximum punishment in cases with no personal injury, is a Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 6 months.  Relief on this basis is denied.

In considering the third issue, that the applicant’s Commanding Officer incorrectly based his 951010 retention warning on the reckless driving conviction, and the applicant’s argument that the reckless driving conviction, “…was not misconduct…and no valid reason to issue a Page 13 counseling/warning…”, the Board found that the civil conviction and the directly related provisions of Article 111 were a sound basis for the Command to warn the applicant that continued deficiencies in conduct could result in his separation from Naval service.  The Board also noted that this retention warning was the second in this enlistment that the applicant had received.  The first was issued on 940815 for several periods of unauthorized absence.  The MILPERSMAN referenced in the applicant’s issues provides that, “Subsequent violation(s) of the Uniform Code of Military Justice (UCMJ) or conduct resulting in civilian conviction (s) may result in an administrative separation under Other than Honorable Conditions.”  The Board noted the applicant’s signature on both the 940815 and on the 951010 retention warnings acknowledging the possibility of other than honorable discharge, his responsibility to take corrective action to address his conduct deficiencies, and sources of assistance, guidance and leadership.  By affording the applicant not one but a second opportunity to be retained in the Navy and by offering him guidance and assistance beyond that normally given, the Command attempted to rehabilitate the applicant’s conduct and to allow him to successfully complete his enlistment.  Relief on this basis is denied.

The fourth issue, that the Commanding Officer committed a legal error by unreasonable multiplication of NJP charges and punishments argues that the Commanding Officer should have included all known charges in the Captain’s Mast conducted 960321.  In that Mast the applicant was found guilty of violating Article 86, unauthorized absence.  Subsequently, the charge of Article 112a, wrongful use of a controlled substance was preferred and the applicant was awarded NJP at a Captain’s Mast conducted on 960328.  In the absence of credible information to the contrary, the Board presumed regularity in the conduct of governmental affairs and concluded the Commanding Officer was acting on information which became known subsequent to the Mast conducted on 960321.  Relief on this basis is denied.

The Board considered the fifth issue, one of equity of the discharge.  The applicant argued that Executive Order 13140 of 6 October 1999, amended the Manual for Courts-Martial to the effect that psychotherapist-patient privilege applicable to communications was added to the military rules of evidence.  The applicant argued that his conviction of violation of the UCMJ, Article 112a, was based on communication with his psychotherapist and that this third NJP led to his discharge for a pattern of misconduct.  The applicant further argued that his admission of homosexual conduct, which was an element of the Commanding Officer’s recommendation to the Chief of Naval Personnel on 960418 to discharge him under other than honorable conditions, would not have been made if his psychotherapist-patient privilege had not been compromised.  In considering the provisions of SECNAVINST 5240.174C, Navy Manual for Discharge Review, the Board found the applicant’s rights would be substantially enhanced if current policy were applied to his communications with his psychotherapist.  Accordingly, the Board concurs in the applicant’s argument and finds inequity on this basis.  Subsequently, the Board did not consider either the NJP on 960328 for violation of Article 112a, nor the self-admission of homosexuality in deciding the merits of the applicant’s request for upgrade.

In considering the applicant’s sixth issue, that the applicant, “…had an undiagnosed organic mental disorder which was manifested by known and disclosed symptoms of organic brain damage caused by long-term exposure and overexposure to toxic and neurotoxic chemicals in paints, varnishes, lacquers, solvents, and other paint related products which applicant was routinely required to use in the performance of his duties as a deck seaman aboard the USS E_…”, the Board carefully considered the extensive documentation provided by the applicant, including the additional documents provided the day of the hearing, and the opinions of his several physicians.  The Board found no evidence introduced at the hearing or in the presented records to indicate that US Navy safety regulations were not followed during the time the member served on the USS E_.  The Board found no causal relationship between the occupational work exposures and the member’s medical complaints.  The evidence considered in making this decision was the direct testimony of the member in regards to his work and social history, service medical records, and the submitted civilian medical reports supplied by the member.  The NDRB does not find the circumstances surrounding the applicant’s stated condition, the implied etiology, nor the medical treatment given to the applicant to exculpate his misconduct during his enlistment in the Navy.  Accordingly, relief on this basis is denied.

The applicant requested the characterization of his discharge be upgraded from under other than honorable conditions to Honorable.  After examining all documentation and testimony, the Board disagrees with his assertion that his overall service record warrants an Honorable discharge.  When a sailor’s service has been honest and faithful, it is appropriate to characterize that service as Honorable.  Under other than honorable conditions is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Board considered only those aspects of the applicant’s conduct not exempted by the finding in Issue Five (applicant’s brief issue B-1) and found the applicant’s service was marred by award of nonjudicial punishment (NJP) for offenses triable by court-martial on two occasions, a conviction in civil court for an offense punishable under the UCMJ by a punitive discharge, and adverse counseling entries on three occasions.  The applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful disobedience of the orders and directives which regulate good order and discipline in naval service, and falls short of that required for an honorable characterization of service.  An upgrade to Honorable would be inappropriate.  Relief is therefore denied.

The applicant requested that the reason for his discharge be changed to “Expiration of Enlistment.”  The NDRB, under its responsibility to examine the propriety and equity of a discharge, will change the reason for discharge if such a change is warranted.  The service record clearly documents the pattern of misconduct (two convictions at NJP and a civil conviction for an offense punishable under the UCMJ) which resulted in the applicant’s discharge.  No other reason for separation could more clearly describe why the applicant was discharged.  To change the Narrative Reason for Separation would be inappropriate.  Relief denied.

The applicant requested a document discharge review on 990323 and a documentary discharge review was conducted in Washington, D.C. on 000110.  At that review the NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  Subsequently, the applicant appeared in person before the Board, represented by qualified counsel, and accompanied by his spouse and mother.  This personal appearance hearing Board included no members who had participated in the 000110 documentary review.  The Board examined four issues of propriety and unanimously found the discharge proper.  The Board examined two issues of equity and found inequity in Issue Five (applicant’s brief issue B-1), but found no inequity in Issue Six.  The Board, by a unanimous decision, found the characterization of the discharge shall remain: Under Other Than Honorable Conditions/Misconduct.

This decision exhausts the applicant’s opportunity for review by the Naval Discharge Review Board.  The applicant remains eligible for appeal for upgrade to the Board for Correction of Naval Records.

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.  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.  

C.  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.

D.  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.

E.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 111, Drunken or Reckless driving, if adjudged at a Special or General Court-Martial.

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