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

ex-RMSN, USN
Docket No. ND03-01164

Applicant’s Request

The application for discharge review was received on 20030626.  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 listed the American Legion as the representative on the DD Form 293.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 20040422.  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 received 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/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Issues submitted by Applicant’s representative (American Legion):

1.  “(Equity Issue) This former member opines that symptoms of Post Traumatic Stress Disorder (PTSD) following the explosion on the USS Iowa impaired his ability to serve and was contributing factor in his misconduct of record.  

2.  (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.”

Documentation

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

Thank you letter to Applicant, dated December 31, 1992
Letter of Appreciation, dated March 23, 1993
Enlisted Performance Evaluation Report, dated March 24, 1993
Cox Communication Performance Scorecard
Character reference, not dated
Certificate of Attendance for Suburban Cable 750 MHz, dated March 25, 1997
Corrections Corporation of America completion certificate, dated August 17, 2001

DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	870203 - 870218	COG
	Active:   USN			870219 - 901030	HON

Period of Service Under Review:

Date of Enlistment:  901031		Date of Discharge:  930609

Length of Service (years, months, days):

	Active:    02  07  09
	Inactive:  None

Age at Entry:  23			Years Contracted:  4

Education Level:  12			AFQT:  34

Highest Rate:  RM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.44 (5)	Behavior:  3.40 (5)		OTA:  3.40

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, MUC, SSDR (2), BER, AFEM

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

901031:	Applicant reenlisted for 4 years.

920228:	Retention Warning: Advised of deficiency (Your tardiness/unauthorized absence from CPR training, non-payment of just debts, failure to abide by traffic rules and regulations onboard military installations, sleeping on watch, straying from appointed place of duty, non-compliance with your supervisor’s direction and non-completion of JQR within the prescribed time frame.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
930305:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  [Extracted from Commanding Officer’s message dated 930425.]

930414:	Medical Entry: A: ETOH abuse, dependency based on his increased tolerance.  P: CAAC screen.  Recommend: Level II or III.

930416:	NJP for violation of UCMJ, Article 92: Failure to obey a lawful order, violation of UCMJ, Article 95: Resisting arrest, violation of UCMJ, Article 111 (2 specs): Drunk/reckless driving, violation of UCMJ, Article 128: Assault.
	Award: Forfeiture of $541 per month for 2 months, restriction and extra duty for 45 days, reduction to RMSN.  No indication of appeal in the record.

930422:	Applicant advised of his 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.  [Extracted from Commanding Officer’s message dated 930425.]

930425:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

930429:	CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

930603:	Applicant declined treatment at VA hospital.

950619:	NDRB documentary record review Docket Number ND95-01227 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19930609 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 states that symptoms of Post Traumatic Stress Disorder (PTSD) following the explosion on the USS Iowa impaired his ability to serve and was contributing factor in his misconduct of record.  A characterization of service of under other than honorable conditions is warranted when the member’s conduct constitutes a significant departure from that expected of a Sailor.  In the Applicant’s case, there is no evidence in the record that he was not responsible for his actions due to PTSD.  The Applicant’s service was marred by award of nonjudicial punishment (NJP) for violation of UCMJ, Article 92: Failure to obey a lawful order, violation of UCMJ, Article 95: Resisting arrest, violation of UCMJ, Article 111 (2 specs): Drunk/reckless driving, violation of UCMJ, Article 128: Assault, and adverse counseling entries.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service.  An upgrade to honorable would be inappropriate.  Relief denied.

Issue 2.  Normally, to permit relief, a procedural error or inequity must have existed during the period of enlistment in question.  No such error or inequity occurred during the Applicant’s enlistment.  Additionally, 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.  The Applicant’s post-service documents were found not to mitigate the offense for which he was discharged.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective 
05 Mar 93 until 21 Jul 94, 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