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

  
ex-EMFA, USN
Docket No. ND03-00517

Applicant’s Request

The application for discharge review was received on 20030210.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to medical.  The Applicant requests a personal appearance hearing before the Board in the Washington National Capital Regional.  The Applicant did not designate a representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Board does not have the authority to change the reason for discharge to a medical discharge.  Additionally, the Applicant was informed that the Board first conducts a documentary record review prior to any personal appearance hearing.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040128.  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 and reason for the discharge was discovered by the NDRB.  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 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “For the three years I was in the Navy, I received no medical attention to cure my illness.  I try to do what is asked of me.  But the discharge I received is unfair because I wasn’t the only one at fault.  During two underway periods, I was the only sailor without a rack purposely.  With all due respect sir’s, I just want to set the record straight.”

Documentation

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

Applicant’s ECG report undtd
Applicant’s Medical Consultation, Branch Medical Clinic, Great Lakes, dtd May 1, 2000
Applicant’s Radiologic Exam Report dtd Aug 23, 2001

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	971122 - 980804	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  980805		Date of Discharge:  011102

Length of Service (years, months, days):

	Active:    03  02  28 (Doesn’t exclude lost time.)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 (24 months extension)

Education Level:  12			AFQT:  89

Highest Rate:  EM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0 (3)	Behavior:  3.0 (3)		OTA:  2.99 (5.0 eval)

Military Decorations:  None

Unit/Campaign/Service Awards:  Navy “E” Ribbon

Days of Unauthorized Absence:  25

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

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

Chronological Listing of Significant Service Events:

000707:	NJP for violation of UCMJ, Article 109:  Destruction of property other than military; violation of UCMJ Article 128 times 2:  Assault.
Award:  Forfeiture of ½ pay per month for 1 month (suspended for 6 months), restriction and extra duty for 20 days.  No indication of appeal in the record.

001007:	USS KINGFISHER Mental Health Clinic 56:  20 year old black male complaining for LBP for 2 months.  States that initial injury occurred during a fall while playing Volleyball 2 months ago, has had chronic low back pain since that time.  States pain is not consistent, comes and goes, sometimes sharp with movement.  Denies distal numbness/tingling or paralysis.  States that pain sometimes radiates to left side.  States that he though it was a muscle pull, but the injury has not resolved.
	Assessment:  7245 – Backache, unspecified
	Plan:  1. X-ray of lower back.  Will evaluate for referral if x-rays show structural problem.  2.  Motrin 8000mg tid for 14 days.  3.  Educated on low back care and stretching/strengthening exercises.  4.  Returned to counseling, as necessary if not improved.

010202:	USS KINGFISHER Mental Health Clinic 56:  20 year old black male complaining of Continued LBP for 5 months.  States that the pain keeps recurring on and off, and states that the pain sometimes radiates to the left hip area.  Also voices concerns about family history of diabetes.
	Assessment:  7245 – Backache, unspecified.
	Plan:  1.  Refer to Dr. K_ for low back exam and possible referral to Physical Therapy Back Class.  2.  Will order fasting blood glucose test for screening for diabetes.  Recommend repeating test annually.  3.  Follow-up per Dr. K_’s recommendation.
	Disposition:  Full duty.
	
010629:	NJP for violation of UCMJ, Article 86:  On or about 23 May 2001, without authority, absent himself from his unit, to wit:  USS KINGFISHER, located at Naval Station Ingleside, and did remain so absent until on or about 16 June 2001; violation of UCMJ Article 87: On or about 23 May 2001, through neglect, miss the movement of USS KINKFISHER with which he was required in the course of duty to move.
	Award:  Forfeiture of ½ pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.

010702:	USS KINGFISHER Mental Health Clinic 56:  21 year old black male complaining of history of hypertension.  States that it was noticed on his enlistment physical, and he has had numerous blood pressure check since that time, but nothing was ever done to correct his BP (Blood Pressure).  Also complains of family history of Diabetes, wants to be check out.  Also complains of frequent headaches.  No symptoms at this time.  Gait/balance intact, no evidence of neurological deficit.  Has documented serial BP checks in his medical record, with elevated BP levels, but there is no evidence that the patient ever followed up on the results.  Pt also states that he had a CT scan while in boot camp to evaluate his headaches, but there is no documentation of the CT or follow-up.  BP today shows slightly elevated diastolic pressure (126/92).  Last eye exam was Oct 98.  
	02 Jun 01: BP=162/92, P=80
	03 Jun 01: BP=128/96, P=84  Pt also asked our XO what would happen if he did not take any HTN meds he might be given, and was ordered by the XO to comply with any medical treatment plan given.  Pt also asked me how to request a medical board, and was told that certain medical protocols needed to be completed before a medical board would be considered.
	05 Jul 01: ***NOTE***Pt refused vital signs and HTN Bloodwork, and went UA from the medical clinic (he is currently on restriction).  Mbr remained UA for one day before returning to the ship voluntarily.
	Assessment:  Malingering.  Pt may indeed have HTN but serial BP’s were incomplete due to pt refusal.
	Plan:  1.  Serial BP checks incomplete due to pt refusal.  2.  Will attempt to complete Serial BP checks and HTN Bloodwork next week.

010706:	USS KINGFISHER Mental Health Clinic 56:  21 year old black male for Psych Eval, requested by C.O.  Pt refused vital signs, and refused to get out of his rack.  States that he is having some authority problems right now, but firmly denies suicidal or homicidal plans or ideations.  Appears and moderately rebellious, refusing vital signs and to get out of his rack for the interview.  Does not currently show violent tendencies.  Gives forward answers to questions, stating family problems and current disciplinary problems, disgusted with authority and just wants out of the military.  He was told that the earliest psych appointment would be on the 24th of July.  Pt accepted this and stated that he would accept his restriction and extra duties until that time.
	Assessment:  V62 – Psychosocial circumstances, other.
	Plan:  Pt cleared to participate in all shipboard duties and responsibilities.  Will send pt for HTN Blookwork on Monday after fasting for 12 hours.  Will begin recheck on serial BP’s on Monday.

010709:	USS KINGFISHER Mental Health Clinic 56:  21 year old black male complaining of Refusal of HTN (hypertension) Bloodwork scheduled for this morning.  Pt was escorted to the Branch medical clinic by the ship MAA, knowing that he was going to have blood drawn, but refused again when he arrived, stating that he was supposed to have a psych eval this morning.  Pt was then escorted back to the ship, where pt was later observed laughing about the whole matter. 
	Assessment:  Malingering.
	Plan:  No medical treatment is currently indicated.  Pt has a definite possibility of HTN, but refuses exam or treatment.
	Disposition:  Full Duty.

010716:	NJP for violation of UCMJ, Article 86:  On or about 1030, 5 July 2001, without authority, absent himself from his unit, to wit:  USS KINGFISHER, located at Naval Station Ingleside, and did remain so absent until on or about 2130, 5 July 2001; violation of UCMJ Article 90: Having received a lawful command from LCDR F_, USN, HIS SUPERIOR COMMISSIONED OFFICER, then known by the said Fireman P_ (Applicant), to be his superior commissioned officer, to muster as a restricted man, did, on board USS KINGFISHER, on or about 5 July 2001, willfully disobey the same; violation of UCMJ Article 91: Having received a lawful command from Mineman Chief Petty Officer M_, USN, his superior non commissioned officer, then known by the said Fireman P_ (Applicant) to be his superior non commissioned officer, to stand at attention, acknowledge her presence, and carry out extra duties assigned, did, on board USS KINGFISHER, on or about 30 June 2001, willfully disobey the same.
	Award:  Forfeiture of ½ pay per month for 2 months, correctional custody unit for 30 days, reduction to E-2.  No indication of appeal in the record.

010719:	Emergency Room, Naval Hospital Camp Lejeune:  Seen by LCDR N_.  Diagnosis:  Suicidal ideation.  To return to command – pt says will be Ok on flight.
	Return to sick call as needed.

010719:	Naval Hospital Corpus Christi, TX, Psychological Eval/Recommendation:
Diagnosis:  
AXIS I 309.0 Adjustment Disorder with Depressed Mood secondary to stress.  
AXIS II 301.9 Personality Disorder with Avoidant, Histrionic, Immature, and Narcissistic Traits (EPTS).
Recommendation:  This service member has been clinically determined to be unsuitable for continued service based upon a DSM IV AXIS II diagnosis of Personality Disorder, which is sufficiently severe as to preclude satisfactory performance of duty.  There is no cure for his personality disorder.  No mount of taining or leadership will reverse this condition.  Continued emotional difficulties are highly likely.  In addition, this Service member has shown a pattern of unstable behavior and, therefore, is considered to be potentially dangerous to himself and others in the military as long as he is retained.  Therefore, Expeditious administrative separation is recommended.
No ratable disability exists.  Member is mentally competent to handle his personal and financial affairs.  He is psychiatrically cleared for administrative or judicial proceedings.

010724:	Naval Hospital Corpus Christi, TX (Re-Evaluation and Follow-Up) (Staff Psychologist):  Symptom:  Returns for f/u as well as re-eval per IDC’s request regarding possible malingering.  Pt states he has been informed by ship’s legal officer he will be undergoing an Admin Board to decide what type of discharge he will be given.  Pt feels less depressed and no longer suicidal.  He is not certain if he will be required to serve his entire restriction period prior to discharge, but in any case he feels hopeful and positive regarding the possibility of discharge from the military.
Assessment:  Impression:  Behaviors described per IDC’s consult consistent with narcissistic and immature traits.  Given histrionic tendencies; return to CCU will likely result in repeat of past behavior; e.g. voicing suicidal ideations.
ADDITONAL COMMENTS:  Medical note entry noted on 19 Jul 91; Camp Lejeune Naval Hosp E.R. states, “discussion with CPL on duty @ CCU – no matter what I decide if pt says he is suicidal to them they will not take him”, thus it is my understanding member’s admission to CCU was refused by CCU vs. medical at the time.  No diagnostic change.  No change in recommendation and follow-up as necessary.  

010725:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

010725:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

010828:	An Administrative Discharge Board, based upon preponderance of the evidence and by unanimous vote, found that the Applicant had committed a serious offense, that the misconduct warranted separation, and by a vote of 2 to 1, recommended discharge under other than honorable conditions.

010919:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  Commanding Officer’s comments (verbatim):  [EMFA P_ (Applicant) decided that he no longer wanted to be a part of the naval service.  Unfortunately he also decided that the way to solve his problems was to break our rules.  EMFA P_ (Applicant) went UA for 25 days and missed important ship’s movements.  When he finally returned, his excuse at mast was that medical problems made the underway periods difficult for him.  EMFA P_ (Applicant) was put on restriction and we immediately made efforts to get him medically evaluated.  He was escorted to the Ingleside Branch Medical Clinic where he refused treatment.  During this appointment, he broke restriction and again went UA.  Upon his return some twelve hours later, he was nothing short of defiant and difficult.  He disobeyed direct orders from both the Command Chief and the Executive Officer.  Despite his attitude, I was unwilling to give up on him.  At NJP, I ordered him to a correctional custody unit.  EMFA P_ (Applicant) was promptly returned from CCU for a suicidal ideation and a negative training attitude.  A psychological evaluation confirmed that EMFA P_ (Applicant) was a threat to himself and others.  Additionally, the medical evaluation stated that, “There is no cure for his personality disorder.  No amount of training or leadership will reverse this conduction.”  I. W_, Ph.D., staff psychologist recommended “Expeditious administrative separation.”  I realize we are in a war for people.  I was prepared to send EMFA P_ (Applicant) to another ship for a fresh start, but based on the medical recommendation, I feel I would be passing a problem to another ship.  I concur with the board’s recommendation for separation from the Naval service with an Other than Honorable discharge.]

011015:	Commander, Mine Warfare Command, Corpus Christi, TX, directed the Applicant's discharge 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 20011102 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:  The Applicant’s issue is without merit.  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.  The Applicant’s service record is marred by award of non-judicial punishment (NJP) on three separate occasions.  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 he was unsuitable for further service. An upgrade to honorable would be inappropriate.  Relief denied.

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.  The summary of service clearly documents that misconduct due to commission of a serious offense was the reason the Applicant was discharged.  No other Narrative Reason for Separation could more clearly describe why the he was discharged.  To change the Narrative Reason for Separation 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, an alcohol-free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.   

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 31, dated 20 Feb 01, effective 25 Jan 01 until 21 Aug 02, 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 "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