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

ex-SR, USN 
Docket No. ND03-00606

Applicant’s Request

The application for discharge review was received on 20030226.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a documentary record review.  The Applicant listed the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040812.  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 4 to 1 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 stated

Applicant’s issues, as stated on the application:

1.  	“I feel that my discharge was appropriate at the time, although I also feel that I have grown as a person and bettered myself in many way.  I am now a family man with a wife, kids, and much more responsability.  I feel that I’m not the same man that I was in my younger years, and that I would be an asset to the Army, as the Army would be for me.  
Please give me a second chance to show you that I have changed.  I am a much more responsible person and to be a part of the Army (to get that second chance) would be an honor.”

Issues submitted by Applicant’s counsel/representative, the American Legion:

1.  “Equity Issues:  Based on our review of evidentiary record and on behalf of this former member, we opine that this Applicant should have been administratively separated from the Navy based on the 940620 psychological recommendation that he was, in effect, unfit for further military service.  On this basis, we aver that his future misconduct was sufficiently mitigated by his personality disorder as to warrant the Board’s relief with recharacterization of his service period to General (Under Honorable Conditions).

In accordance with 32 C.F.R. section 724.166 and SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement to the Applicant’s petition.

Review of the service record reflects that this former member earned the NDSM.  On 940604, he was diagnosed with a personality disorder with antisocial and borderline traits by psychological evaluation that found him to be unsuitable for further duty and recommended administrative separation.  On 941228, he was convicted by SPCM for VUCMJ, Art. 86 and on 950407, awarded NJP for VUCMJ, Art. 86, 87.  Following due process notifications, he was discharged Under Other Than Honorable Conditions due to misconduct as authorized by NAVMILPERSMAN, Art. 3620600.

Essentially as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because of his post-service conduct and because he would like to reenter the military.  He has not submitted any additional documentation for the Board’s consideration.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, we rest assured that the NDRB‘s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553, and set forth in 32 C.F.R., part 724 and SECNAVINST 5420.174C, enclosure (1).

This case is now respectfully submitted for deliberation and disposition.

								[signed]
								R. S_
								Military Review Boards
								Representative

Documentation

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

Copy of DD Form 214.

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	940125 - 940201	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  940202		Date of Discharge:  950531

Length of Service (years, months, days):

	Active:    01  03  15
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  11			AFQT:  53

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF*			Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  115

*No marks found in service record

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:

940620	Applicant diagnosed with personality disorder with antisocial and borderline traits.  The psychiatrist recommended separation based on a personality disorder of such severity as to render the Applicant incapable of serving adequately in the naval service.  Continued service represented an increasing risk of harm to self and others.

940706	Retention Warning:  Applicant advised of deficiency, numerous Unauthorized Absences, notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

941228:	Special Court-Martial [trial dates 18 December 1994] for violation of
	Charge:  violation of the UCMJ, Article 86,
	Specification:  Unauthorized absence on or about 2 August 1994 until apprehended on or about 17 November 1994.
	Findings:  to the charge and sole specification thereunder, guilty.
	Sentence:  Forfeiture of $500.00 per month for 2 months, confinement for 2 months.

950317:	Applicant failed to report aboard USS Butte.  Begins period of UA.

950328:	Applicant missed USS Butte’s movement.

950331:	Applicant’s period of unauthorized absence terminated by surrender

950407:	NJP for violation of UCMJ, Article 86: unauthorized absence; violation of UCMJ Article 87: missing ships movement
	Award:  Forfeiture of $427.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

950411:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

950411:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights.

950412:	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: “[Applicant’s] behavior is inconsistent with military life and detrimental to the morale of my crew.  His misconduct has shown that he has failed to comply with the rules and regulations of the military.”

950427:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

950531	Applicant discharged 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 19950531 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:  In his statement to the Board, Applicant indicates that he feels that he has grown as a person and expresses his desire to enlist in the U.S. Army.  Concerning reenlistment, the NDRB has no authority to change reenlistment codes or make recommendations to permit reentry into the naval service or any other of the Armed Forces.  The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy or Marine Corps.  Reenlistment policy of the naval service is promulgated by the Commander, Navy Recruiting Command, 5722 Integrity Drive, Bldg 784, Millington, TN 38054.  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

The Applicant’s representative, The American Legion, argues that Applicant’s diagnosed personality disorder sufficiently mitigated his misconduct to warrant an upgrade in his characterization of service.  The mere presence of a personality disorder is not a bar to Naval Service.  There is no evidence in the record to suggest that Applicant was not responsible for his misconduct or that he should not be held accountable for his actions.  In the Applicant’s case, the Board could discern no impropriety or inequity in the Applicant’s discharge based merely on the fact that Applicant was permitted to continue his service despite the presence of a diagnosed personality disorder.  Therefore, the NDRB considered the Applicant’s discharge proper and equitable.  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 documentation to support any claims of post-service accomplishments or any other evidence related to his discharge 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 9, effective 
22 Jul 94 until 02 Oct 96, 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