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

 
 ex-SN, USN
Docket No. ND03-00627

Applicant’s Request

The application for discharge review was received on 20030303.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests 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 20040205.  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 stated

Applicant’s issues, as stated on the application:

1.  “I was Dishonorably Discharge in Feb 2002 for a misconduct.  In May 2002 I was diagnose with schizophrenia.  My doctor that I seeing says what I did in the Navy is also due to my mental illness.  I believe if I had gotten the help in the Navy.  Know what I know now about my mental illness, I would still be in the Navy and serving my country Honorably.  Please could I have my discharge upgraded to Honorable.

Thank you

D_ P_ (Applicant)”

Documentation

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

Psychiatric evaluation dated December 2, 2002
Pennco Tech student verification, dated March 26, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	000530 - 000608	COG
	Active:  None

Period of Service Under Review:

Date of Enlistment:  000609		Date of Discharge:  020222

Length of Service (years, months, days):

	Active:    01  08  14 		Does not exclude lost time
	Inactive:  None

Age at Entry:  22			Years Contracted:  4

Education Level:  12			AFQT:  36

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.50 (2)	Behavior:  2.00 (2)		OTA:  2.75

Military Decorations:  None

Unit/Campaign/Service Awards:  BER

Days of Unauthorized Absence:  71

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:

011001:	Applicant to unauthorized absence.

011022:	Applicant from unauthorized absence (21 days).  [Extracted from DD Form 214, Block 29.]

011102:	Civil Conviction:  General District Court, Criminal Court, Arlington City, VA for violation of Nordstrom Credit application to the prejudice of another’s rights on 011006 and with intent to defraud, obtain record or access identifying information not available to the general public that would assist in accessing financial resources, obtaining identification documents, or obtaining benefits of such other person without authorization or permission of the person who is the subject of the identifying information.  The resulting financial loss was $200.00 or less.
Sentence: Jail for 12 months.  Jail for 9 months suspended.

010206:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 0700, 001231 to 0700, 010103 (3 days/surrendered), violation of UCMJ, Article 92: Fail to obey a lawful order on 001231, to wit: wrongfully not returning to the USS SAIPAN (LHA 2).
	Award: Restriction and extra duty for 30 days.  No indication of appeal in the record.

010206:	Retention Warning: Advised of deficiency (Failure to conform to military rules and regulations.  Your misconduct included unauthorized absence from 31 December 2000 to 3 January 2001 and failure to obey other lawful order.  Your misconduct was in violation of UCMJ, Article 86 and Article 92, resulting in nonjudicial punishment held on 6 February 2001.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
 
020108:	NJP for violation of UCMJ, Article 86 (3 specs): (1) Unauthorized absence from 0700, 011009 to 0700, 011023 (14 days/surrendered), (2) Unauthorized absence from 0700, 011025 to 0700, 011029 (4 days/surrendered),  (3) Unauthorized absence from 0700, 011102 to 0700, 011215 (43 days/surrendered).
	Award: Forfeiture of $584 per month for 2 months, restriction and extra duty for 45 days, reduction to SA.  Forfeiture and reduction suspended for 6 months.  No indication of appeal in the record.

020111:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, misconduct due to commission of a serious offense and misconduct due to civilian conviction.

020111:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

020214:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, misconduct due to civilian conviction, and misconduct due to commission of a serious offense.

020219:	Commander, Amphibious Group TWO 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 20020222 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:  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 mental illness was a contributing factor, it does 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 a civilian conviction and by award of non-judicial punishment (NJP) on two separate occasions.  An upgrade 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, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.   At this time, the Board determined that the documentation submitted by the Applicant does not mitigate his 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