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

 ex-AKAN, USN
Docket No. ND02-00453

Applicant’s Request

The application for discharge review, received 020226, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region.  The Applicant listed the Veterans of Foreign Wars as the representative on the DD Form 293.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 021024.  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, as submitted

1.  Propriety - Waived right to a military review board - do not feel he had the mental capacity to understand the full impact of what he was signing.

Dr. G_ D. S_, MD wrote in Jan 11, 2001 that Mr. R_’s (Applicant) psychiatric disorder definitely interferes with his ability to function occupationally, socially and interpersonally and that he suffers from major recurrent depression.  The question is how long.

2.  (Equity Issue) Submitted at the time of hearing.  Veterans of Foreign Wars Representative requested this former service member be considered for an upgrade to (general) under honorable conditions based upon post-service conduct.

Documentation

In addition to the service record and previous case, the following additional documentation, submitted by the Applicant, was considered:

Copy of notice of decision that discharge is proper as issued letter dated January 8, 2002
Applicant’s statement (3 pages)
Criminal Record Check
Letter from psychiatrist dated January 11, 2001 (2 pages)
Louisville Technical Institute Transcript (2 pages)
Camp Quality of Kentucky Summer 1996 (22 pages)

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:  910510		Date of Discharge:  930810

Length of Service (years, months, days):

	Active:    02  03  01
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  11			AFQT:  51

Highest Rate:  AKAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.20 (2)	Behavior:  3.20 (2)		OTA:  3.20

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SASM, SSDR, NER

Days of Unauthorized Absence:  7 

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:

910513:	Applicant retained in the Naval service, despite defective enlistment and induction due to fraudulent entry into naval service as evidenced by failure to disclose pre-service civil involvement/drug abuse.  This decision is based on the information provided the Recruit Quality Assurance Interviewer and if it is found that additional information has not been disclosed, this waiver is void and Applicant could have been subject to other judicial or administrative proceedings.  Civil involvement: reckless driving, driving without insurance and driver's license, and two counts of no registration, 2/90, Louisville, KY, 11 days jail and $500 fine.  Driving without registration, 5/91, Culver City, CA fine has not been paid but court has no record.  Two parking tickets, 3/90 and 4/90, Culver City, CA.  Total fined paid: $56.

910919:	NJP for violation of UCMJ, Article 128: Assault consummated by a battery on 5Sep91.
	Award: Forfeiture of $200 per month for 2 months, restriction and extra duty for 21 days.  No indication of appeal in the record.

921209:	Applicant to unauthorized absence 1400, 9Dec92.

921215:	Applicant from unauthorized absence 1800, 15Dec92 (6 days/surrendered).

930429:	NJP for violation of UCMJ, Article 86: Absence from appointed place of duty on 28Mar93, violation of UCMJ, Article 112: Drunk on duty on 28Mar93.
	Award: Restriction and extra duty for 15 days, reduction to AKAA.  All punishment suspended for 6 months.  No indication of appeal in the record.

930429:	Retention Warning:  Advised of deficiency (unauthorized absence from appointed place of duty on 28Mar93 and drunk on duty on 28Mar93), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

930628:	Applicant hospitalized.

930701:	Applicant discharged from hospital: Discharge diagnosis: Axis I: Alcohol abuse, Axis II: Personality disorder with antisocial and borderline features.
	Recommended complete Level II alcohol rehabilitation.

930709:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

930709:  	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.

930720:	Applicant to unauthorized absence 0700, 20Jul93.

930720:	Commanding Officer recommended discharge under other than honorable conditions due to convenience of the government on the basis of personality disorder and by reason of misconduct due to the commission of a serious offense.  Commanding Officer’s comments (verbatim): As reflected in enclosure (4), AKAN (Applicant) has a severe personality disorder that renders him incapable of serving adequately in the naval service.  Due to AKAN (Applicant's) severe personality disorder and serious violations of the Uniform Code of Military Justice, his retention on active naval service is not considered to be in the best interests of the United States Navy.

930721:	Applicant from unauthorized absence 0800, 21Jul93 (1 day/surrendered).

930730:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

011214:	NDRB documentary record review Docket Number ND01-00777 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 930810 under other than 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:  When reviewing a discharge characterization, the NDRB does consider the extent to which a medical condition might affect an Applicant’s performance and ability to conform to the military’s standards of conduct.  In this case, after award of non-judicial punishment on two occasions, the Applicant was hospitalized and subsequently diagnosed, by appropriate medical authority at Portsmouth Naval Hospital, as having Axis I:  Alcohol abuse, and, Axis II: Personality Disorder NOS with Antisocial and Borderline features.  Based upon this diagnosed personality disorder, lack of motivation and commitment on the part of the Applicant, the medical officer determined the Applicant unsuitable for further retention in the naval service.  The medical authority further stated: “The patient (Applicant) fully understands that the decision concerning continued military service versus discharge from the Navy rests solely with his parent command and that the above discharge plans and recommendations are not binding.  There are no psychiatric contraindications to any administrative, disciplinary or legal actions deemed necessary by the parent command.”  The Applicant was not determined to be mentally ill, and was considered competent to participate in discharge planning, and he was returned to full duty awaiting separation proceedings.  The Applicant was properly processed for separation with a discharge characterization of under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  After careful review of the Applicant’s service record, medical record and recent medical documentation, the Board found these documents devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded.  Relief denied.

Issue 2:  The Board was impressed with the Applicant’s efforts at continuing his education, but does not consider these accomplishments to be of sufficient nature to mitigate the Applicant’s misconduct.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective 05 Mar 93 until 21 Jul 94, Article 3630600, 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 "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