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

 
 ex-FR, USN
Docket No. ND03-00620

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 honorable.  The Applicant requests a documentary record discharge review.  The Applicant listed a private representative on the DD Form 293.

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 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/IN LIEU OF TRIAL BY COURT MARTIAL, authority: NAVMILPERSMAN, Article 1910-106 (formerly 3630650).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s/representative’s (private representative) issues, as stated on the application:

1.  “Subject: Requested Change of the Discharge Classification for A_ S_ M_ (Applicant) SSN # deleted), From Other than Honorable, to Honorable, from the United States Navy, IAW DD Form 293, Section 3, Subsection A.

My Son joined the United States Navy shortly after turning 17 years old (with the permission of his Mother & I). Unknown to His Mother & I, My Son was having Physiological problems while he was in Boot Camp at Great Lakes Illinois. He visited the Navy’s Doctor, Chaplin & the Boot Camps Commandant. He made it very clear that he wanted out of the Navy at that time & that He had delusions of hurting himself. He was diagnosed at that time with a Personality Disorder by the Navy’s own Doctor. As A_ S_ M_ (Applicant) Legal Guardian, I was never notified.

After Graduating from Boot Camp, My Son was sent down the Street to the Fireman Apprentice School at Great Lakes Illinois. Once again he made it very clear to the Navy’s Doctor, Chaplin & the Fireman Apprentice School Commandant that he was continuing to have the same problems as in Boot Camp. One more time he was diagnosed with a Personality Disorder by the Navy’s own Doctor. As A_ S_ M_ (Applicant) Legal Guardian, I was never notified.

After Graduating from the Navy’s Fireman Apprentice School, my Son was sent to May Port Florida, aboard the USS O’Bannon DD-987. Shortly after arriving at the USS O’Bannon DD-987, My Son’s Personality Disorder surfaced again. He was again diagnosed with a Personality Disorder by the Navy’s own Doctor. On five different occasions My Son was treated & diagnosed with a Personality Disorder by the Navy’s own Doctor’s. All of the Navy’s Doctors Recommended that My Son be Administratively Discharge because of His Medical condition & because of His Immaturity (age 17). At that point in time, there was a time limit of 180 days in the Navy, which was shortly coming upon my Son, where he could no longer be Administratively Discharge (Entry Level Separation or Uncharacterized). As A_ S_ M_ (Applicant) Legal Guardian, I was never notified.

At some point, during My Son’s stay at the USS O’Bannon DD-987, He tried to harm Himself and was hospitalized. As A_ S_ M_ (Applicant) Legal Guardian, I was never notified. After being released from the Hospital, He went UA & proceeded home to Texas. This is when His Mother & I realized there was a problem He was UA for 22 Days & we did everything possible to get Him back to May Port Florida, aboard the USS O’Bannon DD-987. This included working with the Ships Captain (Commander B_ & other Ship Management Personnel). Commander B_ personally promised me, that if My Son returned to the USS O’Bannon DD-987, Commander B_ would proceed with the Navy Doctor’s recommendations to Administratively Discharge My Son from the Navy.

My Son did return to the USS O’Bannon DD-987 (in Good Faith) after 22 days of being UA. He was sent immediately to the Brig on his Ship & keep their while the Ship was at Sea (He was shackled, Hand & Foot the whole time the Ship was at Sea & keep in Darkness). {Please keep in mind, the mindset of a 17 year old Boy, whom his father just convinced to return to the Navy to be Administratively Discharged. He traveled some 1300 mile by himself to return to the USS O’Bannon DD-987} Upon being released from the USS O’Bannon’s DD-987 Brig, once the ship was back in Port, He tried to go UA once again & was stopped in the Parking lot by His Ship & taken to the Brig in Jacksonville Florida Naval Station. He was keep there for 90 days until He was discharged from the Navy, with an Other Honorable Discharged! Please remember, My Son’s whole Navy stay was as a Minor of 17 years (Oct. 11th, 2001 to Aug. 1st, 2002, a total of 264 Days).

My Son & I, have tried to Procure a copy of My Son’s Medical & Personnel Records from the Navy while the Discharge Proceeding we’re going on & since his Discharge from the Navy (Approximately 1 year ago) to no avail (this include filing all of the needed Government Form’s to get these Records).

I had many conversations with My Son’s 2 Navy Lawyer from May Port Navel Station, Lt. R_ A_ & Lt. T_. Both Lawyers had the Privilege of seeing My Son’s complete Navy Records. Lt. R_ A_ made it very clear that all of the Navy’s Doctors had recommended to Commander B_, on many occasions to Administratively Discharge My Son from the Navy, white the time limit of 180 days was not at issue. Their recommendations fell on deaf ears!

I’m including a copy of Mental Health Discharge Note; Dated May 21, 2002, where it is recommended My Son be Administratively Discharged from the Navy. This is the only copy of the Doctor notes, My Son was ever given. Also I’m including a copy of His DD214.

My Son has been separated from the Navy for Approximately 1 year. During that time He has been employed as an Electrician & a Pest Control Technician. He has not been in any trouble with any Law Enforcement Agencies, for any reason, since His Discharge from the Navy!

My Son is now 18 years old, with his whole Life ahead of Him. Please, He does not need this Stigma of an Other than Honorable Discharge following him for the rest of his life, to include the loss of further education & employment.

Thank You for Your Diligent Consideration

J_ M_ (council for Applicant)		A_ S_ M_(Applicant)
(Social Security Number deleted)		(Social Security Number deleted)
(address deleted)				(address deleted)
Home Phone (deleted)			Home Phone (deleted)
Work Phone (deleted)				Fax (deleted
Fax (deleted)					E-mail (deleted)
E-Mail (deleted)”

Documentation

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

Applicant’s DD Form 214
Mental Health Discharge Note, dated May 21, 2002
Narrative Summary, dated May 17, 2002 to May 21, 2002 (11 pages)

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	011001 - 011010	COG

Period of Service Under Review:

Date of Enlistment:  011011			Date of Discharge:  020801

Length of Service (years, months, days):

	Active:    00  09  21
	Inactive:  None

Age at Entry:  17 Parental Consent		Years Contracted:  4

Education Level:  12				AFQT:  39

Highest Rate:  FA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  1.00 (1)	Behavior:  1.00 (1)		OTA:  1.33

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  21

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

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority:  NAVMILPERSMAN, Article 1910-106 (formerly 3630650).

Chronological Listing of Significant Service Events:

020417:	Applicant to unauthorized absence.

020418:	Applicant from unauthorized absence 1600, 020418 (1 day/surrendered).

020422:	Applicant to unauthorized absence.

020512:	Applicant from unauthorized absence (20 days/surrendered).

020514:	NJP for violation of UCMJ, Article 86: Unauthorized absence.
	Award: Forfeiture of $577 per month for 2 months, restriction and extra duty for 45 days, reduction to FR.  No indication of appeal in the record.

020521:	Applicant’s Narrative Summary for first psychiatric hospitalization.  Diagnoses: Axis I: Occupational problem.  Axis II: Personality disorder NOS with borderline features, principal diagnosis.  Axis III: s/p self-inflicted laceration on his left wrist, fractured right 5th metatarsal.  Disposition:  Applicant is psychiatrically fit for full duty.  Applicant is being returned to his parent command.  

020601:	Confinement physical.  Applicant found fit for confinement.

020605:	Mental Health Note: Diagnostic Impression: Axis I: Occupational problem.  Axis II: Personality disorder NOS with borderline features.

020613:	Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 86: Specification: Go from appointed place of duty on 020601, to wit: USS BANNON, violation of UCMJ, Article 92 (3 specs): Specification 1: Fail to obey the lawful order issued by Officer of the Deck, by wrongfully going ashore on 020601, Specification 2: Fail to obey the same by wrongfully continuing to walk on 020601, Specification 3: Violate a lawful general regulation, to wit: paragraph 5b and Enclosure 3, paragraph 1(i) 2(a) of SECNAV INSTRUCTION 5300.28C, dated 24 March 1999, by wrongfully possessing with the intent to use for the purpose of ingesting marijuana, into the human body, drug paraphernalia, to wit: one (1) pipe on 020601, violation of UCMJ, Article 95: Flee apprehension by Air Traffic Controlman Third Class K_ D_ H_, a person authorized to apprehend the accused on 020601, violation of UCMJ, Article 112a (2 specs): Specification 1: Wrongfully possess some amount of marijuana, a schedule I controlled substance while on board an installation on 020601, to wit: Naval Station, Mayport, Florida., Specification 2: Wrongfully introduce some amount of marijuana, a schedule I controlled substance on 020601 to  wit: Naval Station, Mayport, Florida., violation of UCMJ, Article 128 (2 specs): Specification 1: Commit an assault upon Sonar Technician (Surface) First Class S_ R_ E_, by driving a motor vehicle towards him with the means or force likely to produce death or grievous bodily harm on 020601 to wit: a motor vehicle, Specification 2: Assault Sonar Technician (Surface) First Class S_ R_ E_, U.S. Navy, who then was and was then known by the accused to be a sentinel in the execution of his duty on Naval Station, Mayport, Florida by driving a motor vehicle towards him on 020601, violation of UCMJ, Article 134: Break restriction on 020601.

020618:	Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.  He consulted with counsel and was fully advised of the implications of his request.  The Applicant stated he understood the elements of the offense(s) with which he was charged, and admitted he was guilty of all the charges preferred against him.  Specifically, he admitted to violating UCMJ, Article 86, 92, 95, 128 and 134.  The Applicant stated he was completely satisfied with the counsel he had received. The Applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veterans' benefits based upon his current enlistment, and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing.  

020731:	The Commanding Officer, exercising GCMCA, approved the request for an administrative separation in lieu of a trial by court-martial, and directed Applicant’s discharge.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020801 under other than honorable conditions in lieu of a trial by court-martial (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

Issue 1:  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.  While he may feel that his personality disorder and age were contributing factors, they do not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service.  His service record is marred by numerous offenses some of which include wrongful possession of an illegal drug and assault.  In a signed statement, the Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.  He consulted with counsel and was fully advised of the implications of his request.  The Applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veteran’s benefits based upon his current enlistment.  He also understood he might encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing.  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, a drug-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 29, effective 
11 Jul 2000 until 21 Aug 2002, Article 1910-106 (formerly 3630650), SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

B.  A punitive bad conduct discharge may be adjudged for violation of the Uniform Code of Military Justice, Article 92, failure to obey a lawful order, Article 95, flee apprehension, Article 112A, wrongfully possess a controlled substance,  Article 128, assault, and Article 138, breaking restriction, upon conviction by a Special or General Court-Martial, in accordance with the Manual for Courts-Martial.

C.  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.  

D.  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.

E.  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