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

   ex-OSSN, USN
Docket No. ND02-01221

Applicant’s Request

The application for discharge review, received 20020828, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter, the Applicant 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 20030828.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600). 

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  My discharge was inequitable because it was based on reprisals of superior officers that did not understand what I have been going through.  All officers were male and I feel that since I had gone to Legal for help they felt I would cause repercussions to them.  I was accused of and found guilty of the following offenses. a.  Disrespect toward a superior officer.  At no time was I ever disrespectful to any superior officer.  If any disrespect was shown would have been disrespect toward me.  I do not know if this was because I was of black race or because I was a female  This has all come about due to a complaint I had filed against a superior officer for being disrespectful toward me. I documented it on enclosed document 1 and document 2.  I also requested that I be rotated to my next duty station as soon as possible without further repression against me.  None of this was done.  I had a rating of an E-4 during this incident and shows I was not a bad Sailor for the time I was I the Navy.  I am sure my rank would have been reduced much earlier than the date it was even though it was stated in document 6 page 2 under (2) j.

b.  On Nov 29th 2001 I was admitted to sick bay due to taking an overdose of pain medication.  I was asked why I had taken that amount but I refused to answer the question as shown on document 12 page 1.  Also the medical record shows that I had been seen by a psychologist previously and was found to have an occupational problem and narcissistic traits.  None of this was brought up at either the nonjudicial punishment or the Summary Court Marshal.  This is part of the reason I had been singled out as a trouble maker and a malinger.  This is one issue why I feel I should not have been discharged under other than honorable conditions.  Also I feel I was singled out when going to confinement physical on Nov. 30, 2001 by being accused of being pregnant.  I stated I was not pregnant.  I was still checked for pregnancy which showed negative on the test the following day.  Are all females being confined tested for pregnancy?  This is in my medical records document 12 page 2.

C.  Pattern of misconduct
This was noted by a psychologist as shown in my medical reports document 12 page 2 dated 29NOV01.  Again this was not reported in my Non-judicial hearing or at the Summary Court Martial held on 29NOV01.  This should have been considered when the recommendation for Administrative Separation by reason of misconduct.

To sum up my issues involved in my application for review of discharge or dismissal from the Armed Forces of the United States.  I feel all circumstances which brought about this decision were not evaluated before a verdict was rendered.  Also I was discriminated against due to being a female and also of black heritage.  This is my case and I wish to have my discharge changed from UNDER THAN HONORABLE CONDITIONS to HONORABLE CONDITIONS.  I served honorably while I was in the U.S. Navy and feel the attached records show this.  I even requested a transfer to avoid problems but it was never considered.

Documentation

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

Applicant's DD Form 214
Nineteen pages from Applicant's service record

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	981118 - 981129	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  981130		Date of Discharge:  020114

Length of Service (years, months, days):

	Active:    03  01  15
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  57

Highest Rate:  OS3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.00 (1)	Behavior:  2.00 (1)		OTA:  2.50

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, AFEM, NER

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

Chronological Listing of Significant Service Events:

990119:	Recruit Evaluation Unit: Applicant interviewed and evaluated.  On the basis of reported history, interview and assessment data, and behavior observed while at RTC, it has been determined that the Applicant is returned to duty.  Diagnosis: Axis I: Occupational problem.  Axis II: No diagnosis offered on Axis II.  Recommendations:  Return to duty.

Undated:	Counseling:  Advised of deficiency (Performance, personal behavior and responsibilities.), notified of corrective actions and assistance available.

Undated:	Counseling:  Advised of deficiency (Responsibilities.), notified of corrective actions and assistance available.

990804:	Counseling:  Advised of deficiency (Performance and responsibilities), notified of corrective actions and assistance available.

990808:	Counseling:  Advised of deficiency (Performance and responsibilities), notified of corrective actions and assistance available.

990819:	Counseling:  Advised of deficiency (Performance.), notified of corrective actions and assistance available.

990822:	Counseling:  Advised of deficiency (Performance.), notified of corrective actions and assistance available.  Applicant refused to sign.

000318:	Counseling:  Advised of deficiency (Personal behavior), notified of corrective actions and assistance available.  Applicant refused to sign.

000401:	Counseling:  Advised of deficiency (Performance and responsibilities.), notified of corrective actions and assistance available.

000403:	Counseling:  Advised of deficiency (Military bearing, professional responsibilities, personal conduct, and personal behavior.), notified of corrective actions.  (Two separate counseling sheets.)  Applicant refused to sign.

000525:	Counseling:  Advised of deficiency (Other and responsibilities.), notified of corrective actions and assistance available.

000528:	Counseling:  Advised of deficiency (Personal behavior and responsibilities.), notified of corrective actions and assistance available.

000620:	Counseling:  Advised of deficiency (Personal behavior and responsibilities.), notified of corrective actions and assistance available.  Applicant refused to sign.

000629:	Counseling:  Advised of deficiency (Performance.), notified of corrective actions and assistance available.  Applicant refused to sign.

000630:	Counseling:  Advised of deficiency (Performance.), notified of corrective actions and assistance available.  Applicant refused to sign.

000702:	Retention Warning:  Advised of deficiency (Recent behavior problems with other personnel within your division.  Numerous counseling sessions recently for insubordination and lack of respect toward your superiors.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

000828:	Fleet Mental Health Unit:  Diagnostic Assessment: Axis I: Adjustment disorder with depressed mood.  Axis II: No diagnosis - narcissistic traits.  Axis III: None known.  Axis IV: Lack of support system, separation from family, job discord, routine military stressors, chaotic childhood.  Axis IV: GAF = 58.  Recommendations: Applicant found fit for duty and is responsible for behavior.  Referred to FSC for classes in stress and anger management.  To return to FMHU for follow up appointment in one week.  Applicant understands and agrees with the plan.

001006:	Counseling:  Advised of deficiency (Performance, personal behavior and responsibilities), notified of corrective actions and assistance available.

010305:	Counseling:  Advised of deficiency (Personal behavior), notified of corrective actions and assistance available.  Applicant did not wish to sign.

010722:	Counseling:  Advised of deficiency (Performance and responsibilities.), notified of corrective actions and assistance available.  Applicant refused to sign the counseling for performance.

011002:	Counseling:  Advised of deficiency (Responsibilities.), notified of corrective actions and assistance available.

011123:	NJP for violation of UCMJ, Article 89: Disrespect towards a superior commissioned officer.
	Award: Forfeiture of $654 per month for 2 months, restriction and extra duty for 45 days, reduction to OSSN.  Restriction and extra duty for 5 days suspended for 6 months.  No indication of appeal in the record.

011124:	Retention Warning: Advised of deficiency (Disrespect towards a Superior Commissioned Officer.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

011124:	Medical Department: Diagnoses:  Axis I: Occupational problem, malingering.  Axis II: Deferred, Narcissistic features, R/O Narcissistc personality disorder. Axis III: No diagnosis.  Axis IV: Occupational problems; interpersonal problems; problems related to interaction with the military legal system/crime; routine military stressors including shipboard deployment.  Axis V: Moderate symptoms or difficulty in functioning (SI suspected to be malingering rather than true intent).  Plan: 1. Applicant will be admitted to ward for observation and further evaluation.  2.  Discussed with Dr. T_, admitting MO.  3.  Applicant to be restricted from recreational activities (e.g., no television); reading material limited to religious material and/or service-related subject matter.  Applicant may engage in work on the ward to provide positive alternative to negative rumination.

011125:	Medical Department: Diagnoses: Axis I: Occupational problem, malingering.  Axis II: Narcissistic personality disorder. Axis III: No diagnosis.  Axis IV: Occupational problems; interpersonal problems; problems related to interaction with the military legal system/crime; routine military stressors including shipboard deployment.  Axis V: Moderate symptoms or difficulty in functioning.

011129:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86:
	Specification: Fail to go at the time prescribed to appointed place of duty on 011129, to wit: General Quarters Station.
	Charge II:  violation of the UCMJ, Article 89:
	Specification: Disrespect towards Lieutenant Commander, by saying "I will do whatever I want" when told that she can not smoke while there is no one to watch her; and by saying "Get CO or XO down here to talk to me."
	Charge III:  violation of the UCMJ, Article 115:
	Specification: For the purposes of avoiding service as an enlisted person by representing herself as actively suicidal, in the absence of any mental illness on 011124.
	Charge IV:  violation of the UCMJ, Article 134:
	Specification: Disorderly by being very uncooperative with the medical staff, including not wanting to make her rack, not having her hair within standards while in uniform, and saying she will smoke if she chooses to go smoke, which conduct was of a nature to bring discredit upon the armed forces on 011124.
	Finding: to Charge II. III, IV and the specifications thereunder, guilty, Charge I and the specification thereunder, not guilty.
	Sentence:  Confinement for 30 days, reduction to OSSA.  Reduction suspended for 6 months.
	CA action 011129:  Sentence approved and ordered executed.

011130:	Applicant found fit for confinement.

011130:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.

011130:	Applicant advised of 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 

011130:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by a summary court-martial on 29 Nov 01 VUCMJ, Article 89, Disrespect toward a superior commissioned officer and VUCMJ, Article 115, Malingering and misconduct due to a pattern of misconduct.

011209:	COMCARGRU SEVEN directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020114 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 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:  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a Sailor.  While she may feel that her personal problem was a contributing factor, it does not mitigate the Applicant’s disobedience.  The record is void of any evidence that the Applicant was not responsible for her conduct, that she was treated unfairly by her command or that she should not be held accountable for her actions.  The Applicant’s service record is marred by multiple counseling entries, award of non-judicial punishment (NJP), and a summary court-martial.  The Applicant’s summary of service clearly reflects the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, and demonstrated she was unsuitable for further service. An upgrade to honorable would be inappropriate.  Relief denied.

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, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.   At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate her misconduct while on active duty.  Relief denied.

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.  The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 1997 until 21 Aug 2002, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - 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.

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