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

 ex-AR, USN
Docket No. ND02-00355

Applicant’s Request

The application for discharge review, received 020204, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a personal appearance hearing discharge review.  The Applicant designated the Disabled American Veterans organization as representative on the DD Form 293.  In the acknowledgement letter to the Applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020912.  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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I was awaiting discharge at TPU Yokosuka, Japan for about 8 months.  I have attached documents representing my condition and my status as determined by the Navy.  Please reevaluate my discharge.

Submitted by DAV:

After review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, the FSM request to have his discharge upgraded from General Under Honorable Conditions to one of Honorable.

As the FSM service organization, it is our contention that the General discharge awarded to the FSM is unjust due to the untimely persecution of the FSM.  It is inconceivable that an organization founded on time honored traditions would persecute one of its own for a known medical condition.

The FSM served in the United States Navy from 30 January 1997 to 28 July 1998 with honorable service.  This statement is further supported by his receipt of the Navy Ribbon and the Armed Forces Expeditionary Medal

To support the FSM's claim of an unjust and inequitable discharge we must look at the facts of the case.  In October 1997 while stationed on the USS Independence the FSM was assigned as the MWR custodian.  His responsibilities included moving heavy weights and equipment.  His current back condition has been directly linked to this assignment.  After numerous visits to sick call and with referrals to specialist it was determined the FSM needed to be evaluated by the Physical Evaluation Board (PEB).  The FSM suffered from chronic pain in the lower back with no little relief from medical intervention.  To further exacerbate the situation, the young sailor was continuously placed on limited duty.  As I am sure you are aware, a young service member placed on limited or light duty comes under fire of his subordinates as being lazy or a non-hacker.  To elevate the additional stress this hard charging FSM ignored the recommendations of his physicians and continued to perform his daily duties along side his subordinates, often at the expense of his health.

It is not part of the records on file the exact circumstances that surround the events that led to the Administrative Discharge of the FSM, however, it is arguable that the FSM's medical condition at the time would have caused undue stress on the young sailor.  While the FSM agrees that his actions warranted proper punishment it is in his opinion that the punishment rendered was not appropriate for the offense committed and the circumstances that surround that offense.  This FSM had not been in any altercation before, this while it was extreme, was the FSM first offense.  Furthermore, noted in the FSM medical records are indications that the FSM was suffering from the stress caused by his medical condition.

It is not inconceivable that, had the offense not occurred the FSM would have been severed with allowance from the Navy.  The offense that caused the General discharge was in part caused by the overwhelming amount of pain and stress caused by the injury the FSM suffered as a result of his duties in the Navy.  As mentioned above the FSM felt the need to ignore medical recommendations in order to compete with his peers.  The stress of being ill and not being provided the time to recuperate, in his perception, led to the unfortunate incident that ultimately led to the FSM unwarranted discharge, It is this service organizations contention that had the incident been handled properly the FSM would have received non-judicial punishment and would have been allowed to leave the service for his medical condition.

In light of all the facts, we ask for the Boards careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the applicant.  Respectfully,

Documentation

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

Copy of DD Form 214
VA ltr of Dec 22, 1998 (rating decision)
VA ltr of Dec 28, 2000 (increased compensation notification)
Copy of the VA claim and medical records (including military medical record)

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	970124 - 970129	COG

Period of Service Under Review:

Date of Enlistment:  970130		Date of Discharge:  980728

Length of Service (years, months, days):

	Active:    01  05  29
	Inactive:  None

Age at Entry:  22			Years Contracted:  4

Education Level:  13			AFQT:  43

Highest Rate:  AA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF*	Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  AFEM, Navy "E" Ribbon

Days of Unauthorized Absence:  None

*No Marks Found in service record.

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

980630:	Clinical Psychologist, Mental Health Div, U.S. Naval Hospital, Yokosuka:  Applicant evaluated with following diagnoses:
	AXIS I:  Occupational Problems (DSM-IV: V62.2)
	AXIS II:  Personality Disorder Not Otherwise Specified with Narcissistic and Immature Features (DSM-iv: 301.9)
	AXIS III:  No General Medical Condition.
	Recommendation:  Pt has a personality disorder, which is so servere that his ability to function effectively in the military environment is significantly impaired.  He has made poor adjustment to demands of military service despite appropriate leadership, counseling, discipline and other appropriate methods.  He represents a continuing danger to others as he has recent history of violent and homicidal ideations.  Recommended that he be processed by local command for admin separation by reason that he is psychologically unsuitable for any continued duty due to personality disorder.

980708:	Applicant accepted the Physical Evaluation Board finding of "Fit For Duty," based upon Medical Board for chronic recurrent mechanical low back pain.

980716:	NJP for violation of UCMJ, Article 91 (2 Specs):  
Spec 1 - on or about 7 July 98 did treat with disrespect in language and deportment towards DC2 R_ A. F_, a petty officer, who was then in execution of his office, by saying to him, "That is not a good enough answer" and by responding to him by saying "Dah, dah, dah," or words to that effect.
Spec 2 - on or about 7 Jul 98 did treat with disrespect in language towards DC1 P_ A. S_, a petty officer, who was then in the execution of his office, by saying to him, "Shut-up, I don't work for you," and by saying to him, "Your aren't s--t, except a coward, nothing but a big coward," or words to that effect;
Violation of UCMJ Article 128:  did at or near Transient Personnel Unit parking lot, Fleet Activities, Yokosuka, Japan, on or about 7 July 1998, assault FC2 K_ A. H_, by grabbing his throat and striking the left side of his face.
Violation of UCMJ Article 134: did at or near Transient Personnel Unit parking lot, Fleet Activities, Yokosuka, Japan, on or about 7 Jul 98, wrongfully communicate to FC2 K_ A. H_, a threat by saying to him "You are lucky I didn't answer the door because I would have choked the s--t out of you," and by saying to him "I'll snap his tiny neck," and "If I see him again he's dead."
	Award:  Forfeiture of $463 pay per month for 1 months, restriction for 45 days, reduction to E-1.  No indication of appeal in the record.

980716:	Applicant notified of intended recommendation for discharge with a General (Under Honorable Conditions) by reason of misconduct due to the commission of a serious offense and for Convenience of the Government - personality disorder.

980716:	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.

980716:	Commander, Fleet Activities, Yokosuka advised BUPERS Applicant discharged with a characterization of General (Under Honorable Condition) 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 980728 with a discharge characterization of General (Under Honorable Conditions), for misconduct due to commission of a serious offense (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:  The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, will change the reason for discharge if such a change is warranted.  A characterization of service of under honorable conditions (general) is warranted when significant negative aspects of a service member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.  The Applicant’s summary of service clearly documents the Applicant’s misconduct.
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 that regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service.  The Applicant’s discharge characterization accurately reflects his service to his country.  An upgrade to honorable would be inappropriate.  The discharge was proper and equitable.  Relief denied.

Issue 2:  The Board finds the reason for upgrade as submitted by the DAV to be without merit.  The Applicant received and acknowledged in writing his “FIT” finding from the Physical Evaluation Board.  Therefore, the Applicant was not eligible to be “severed with allowance from the Navy.”  Furthermore, the Department of Veteran’s Affairs determines eligibility for post-service benefits, not the NDRB.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veteran’s benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  Relief denied.

Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the Applicant’s enlistment.  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.  

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  Representation at a personal appearance hearing is highly recommended, but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 
12 Dec 97 until 29 March 2000, Article 1910-142  [formerly 3630605]. SEPARATION 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