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

 ex-SR, USNR
Docket No. ND02-00171

Applicant’s Request

The application for discharge review, received 011211, requested that the characterization of service on the discharge be changed to general under honorable conditions and the reason for the discharge be changed to medical.  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 020715.  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 and narrative reason of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630605.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  I feel that my discharge was unfair and unjust due to my personal, mental and emotional problems.  I was instructed that I was to be given a medical discharge due to my health status, instead I was given an other then honorable discharge.  I feel that I was given an unfair deal.  This discharge has hampered my way of life and has kept me from the opportunity to receive respectable jobs and careers.  I ask for your consideration and help concerning the upgrade of my discharge.  Attached you will find a copy of a letter from a naval psychologist stating the nature of my health and illness and recommendation of discharge.

Applicant marked the box "I HAVE LISTED ADDITIONAL ISSUES AS AN ATTACHMENT TO THIS APPLICATION."  None were found.

Documentation

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

Copy of psychiatric evaluation dated 20-21 February 1997 (3 pages)
Copy of applicant's DD Form 214 (Member 1 and 4)

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:  941022		Date of Discharge:  970613

Length of Service (years, months, days):

	Active:    02  05  15
	Inactive:  00  02  06

Age at Entry:  23			Years Contracted:  8

Education Level:  12			AFQT:  36

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  1.00 (1)	Behavior:  2.00 (1)		OTA:  1.67

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  75

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630605.  [Note BUPERSINST 1900.8 lists the authority as 3630600 instead of 3630605.]

Chronological Listing of Significant Service Events:

951127:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 0425 to 1000, 17Oct95.
	Award: Forfeiture of 1/2 pay per month for 1 month, restriction and extra duty for 10 days.  Forfeiture suspended for 6 months.  No indication of appeal in the record.

951221:	Vacate suspended forfeiture of $478.00 for 1 month awarded at CO's NJP dated 27Nov95 due to continued misconduct.

951221:	NJP for violation of UCMJ, Article 92: Failure to obey order, violation of UCMJ, Article 107: False official statements.  Dates of offenses: 27Nov95 and 14Dec95.
	Award: Correctional custody for 30 days.  No indication of appeal in the record.

960201:	NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ, Article 92: Failure to obey order.
	Award: Forfeiture of $437 per month for 2 months, restriction and extra duty for 45 days, reduction to SR.  No indication of appeal in the record.

961130:	Applicant to unauthorized absence 0715, 30Nov96.

970205:	Applicant from unauthorized absence 0702, 5Feb97 (67 days/surrendered).

970212:	Applicant to unauthorized absence 0830, 12Feb97.

970219:	Applicant from unauthorized absence 2105, 19Feb97 (8 days/surrendered).

970221:	Psychiatric evaluation: Diagnosis: Axis I: Adjustment disorder with mixed anxiety and depressed mood.  Alcohol abuse, not dependent.  Partner relationship problem (marital discord).  Axis II:  Personality disorder not otherwise specified with immature and dependent features.  This condition existed prior to enlistment.

970307:	NJP for violation of UCMJ, Article 86: Unauthorized absence 0715, 30Nov96 to 0702, 5Feb97 (67 days/surrendered), violation of UCMJ, Article 87 (3 specs): Missing movement.
	Award: Forfeiture of $450 per month for 2 months, restriction for 45 days.  No indication of appeal in the record. 

970507:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of convenience of the government due to a personality disorder as evidenced by psychiatric evaluation of 20, 21 February 1997, misconduct due to a pattern of misconduct as evidenced by all NJP's during the current enlistment, and misconduct due to the commission of a serious offense as evidenced by CO's NJP of 7Mar97 for violation of UCMJ Articles 86, Unauthorized absence for 67 days and Article 87 (3 specs), missing movement.

970509:	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. 

970515:	Commanding officer recommended discharge under other than honorable conditions by reason of convenience of the government due to a personality disorder as evidenced by psychiatric evaluation of 20, 21 February 1997, misconduct due to a pattern of misconduct as evidenced by all NJP's during the current enlistment, and misconduct due to the commission of a serious offense as evidenced by CO's NJP of 7Mar97 for violation of UCMJ Articles 86, Unauthorized absence for 67 days and Article 87 (3 specs), missing movement.

970529:	Chief of Naval Education and Training directed the applicant's discharge under other than honorable conditions by reason of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 970613 under other than honorable conditions for misconduct (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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 (C and D).

Issue 1.   When a service member qualifies for involuntary separation for misconduct and also for another reason, the member will normally be separated by reason of his misconduct.  A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor.  The applicant’s service was marred by award of nonjudicial punishment (NJP) for offenses triable by court-martial on four occasions that included the commission of two serious offenses.  No other narrative reason more clearly describes the circumstances surrounding the applicant’s processing for administrative separation.  The Board found that the applicant’s age, education level, and test scores qualified him for enlistment.  While he may feel that his personal and mental problems were factors that contributed to his actions, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in the issue.  The Board’s charter limits its review to a determination on the propriety and equity of the discharge.  In the applicant’s case the Board could discern no impropriety or inequity and therefore considered the applicant’s discharge was proper and equitable.  Additionally, 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 civilian life, subsequent to leaving the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct.  The applicant did not provide sufficient documentation to warrant an upgrade to his discharge.  He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 
03 Oct 96 until 11 Dec 97, Article 3630605, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT ‑ COMMISSION OF A SERIOUS OFFENSE.

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.

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