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

ex-PHAR, USN
Docket No. ND01-00237

Applicant’s Request

The application for discharge review, received 001220, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010601.  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, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  At the time I took actions which resulted in my court martial and eventual other than honorable discharge I believe I was impaired by chronic depression that had been occurring for years.  This situation was exacerbated by my feeling at the time that I had no recourse to correct what I saw as a mistake on my part of having enlisted in the navy at all.

2.  I believe my above characterization of my mental conditions are supported by the evluations of the psychiatrist and/or psychologist who examined me following my court martial, first in Bahrain then at the Navy Hospital in Bremerton, WA.

3.  In addition, I believe that five years is sufficient time to have been stigmatized by having an other than honorable discharge, which may have prevented me from being hired by certain employers.  Now that I am married with thoughts of starting a family I would like the opportunity to move ahead without fear of being penalized for my past mistakes.

Documentation

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

Copy of DD Form 214.

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	940817-941203	HON

Period of Service Under Review:

Date of Enlistment:  941204		Date of Discharge:  951109

Length of Service (years, months, days):

	Active:    01  01  07
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 (12 months extension)

Education Level:  12			AFQT:  75

Highest Rate:  PHAA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA		Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM 

Days of Unauthorized Absence:  48 

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

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

Chronological Listing of Significant Service Events:

950829:	Medical Evalutaion: Patient underwent psychiatric evaluation at U.S. Naval Hospital Yokosuka, Japan, shortly after arriving in Japan under technical arrest orders stemming from a one month UA period.  Patient stated he had taken illegal drugs while UA for the purpose of expediting his separation from the navy.  Medical authority diagnosed member as having a personality disorder with poor coping mechanisms and immaturity.  Medical authority recommended expeditious administrative separation for unsuitability.  LCDR D.H. I____, MC, USNR, Note: Urinalysis results for drugs use were negative [Extracted from CO's message].

950930:	Summary Court Martial for violation of UCMJ, Article 86: Unauthorized absence from 950624-950810 [48days/S], violation of UCMJ Article 115: Malingering.
	Sentenced to forfeiture of $569.60 per month for 1 month, restriction for 30 days, reduction to E-1.
	CA (951008) Approved findings and sentence.

950930:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense evidenced by your summary court martial on 950930, and by reason of convenience of the government on the basis of personality disorder as evidenced by your medical evaluation of 950929, and the undated psychiatric evaluation from Naval Hospital, Yokosuka, Japan [Extracted from CO's message].

950930:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights [Extracted from CO's message].

951014:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and by reason of convenience of the government on the basis of personality disorder.  

951018:	TPU Puget Sound, WA advised BUPERS that applicant was medivac to NavHosp Bremerton, WA due to his personality disorder and request discharge authority be issued to TPU.

951026:	BUPERS directed the USS INDEPENDENCE to discharge the applicant under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

951121:	BUPERS directed the TPU Puget Sound to discharge the applicant under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 951109 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 the applicant’s issues 1 and 2, the Board found that a medical diagnosis, on active duty or during post-service, and whether proper or improper, is not an issue upon which this Board can grant relief.  When reviewing a discharge, the Board does consider the extent to which a medical 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 applicant went to a Summary Court Martial and was convicted of unauthorized absence and malingering (in a hostile fire zone).  The applicant was diagnosed with a personality disorder, not chronic depression as he states in issue 1.  The Board does not consider the circumstances surrounding the applicant’s diagnosis or any medical treatment given to the applicant to be of sufficient nature to exculpate the applicant from his misconduct of record.  In fact, the Board sees no connection between the applicant’s medical condition and his misconduct.  Relief is not warranted.

There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the Service.  However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D).  Those factors include, but are not limited to, the following:  evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct.  In response to the applicant’s issue 3, the applicant has not provided any documentation of good character and conduct.  Therefore no relief will be granted.  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.

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 – 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 86, for unauthorized absence for a period in excess of 30 days 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