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

 ex-MSSN, USN
Docket No. ND04-01022

Applicant’s Request

The application for discharge review was received on 20040607.  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 did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041112.  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 requested medical testing for chemical Imbalance Disorder prior to the misconduct that lead to my OTH discharge.  This testing was refused.  After being discharged evaluations proved the condition.”

Documentation

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

Letter from Desert Family Medicine, undated
Letter from Applicant, dated May 13, 2004

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	990430 - 990927	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  990928		Date of Discharge:  011025

Length of Service (years, months, days):

	Active:    02  00  28
	Inactive:  None

Age at Entry:  25			Years Contracted:  4

Education Level:  12			AFQT:  37

Highest Rate:  MS2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (2)	Behavior:  2.00 (2)		OTA:  2.50

Military Decorations:  None

Unit/Campaign/Service Awards:  NER

Days of Unauthorized Absence:  None

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:

010406:	NJP for violation of UCMJ, Article 91 (2 specs): (1) Insubordinate conduct towards a petty officer on 1830, 010326 by mumbling and kicking boxes in the galley when told to slice up lettuce, (2) Disrespectful in deportment toward MS1 when she attempted to counsel you by saying “I am sick and tired of the Navy, this crap is not for me and I want to get out of the Navy,” on 1900, 010326.
	Award: Forfeiture of $644 per month for 2 months, restriction and extra duty for 30 days, reduction to E-3.  Reduction suspended for 6 months.  No indication of appeal in the record.

010406:	Retention Warning: Advised of deficiency (You were awarded Commanding Officer’s NJP on 010406 for violation of Article 91, insubordinate conduct towards a petty officer), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

010828:	NJP for violation of UCMJ, Article 91: Contempt or disrespect toward a superior non-commissioned officer on 1820, 010821, by interrupting him while he was counseling her and pounding her fist into her palm while he spoke, violation of UCMJ, Article 117: Provoking speeches and gestures on 1800, 010821.
	Award: Forfeiture of $607 per month for 2 months, restriction and extra duty for 45 days, reduction to MSSN.  No indication of appeal in the record.

010829:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

010829:	Applicant advised of 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 

010901:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  Commanding Officer’s comments (verbatim): MSSN V_ (Applicant) has been seen by Fleet Mental Health, several Chaplains, completed Stress and Anger Management courses and has been to Bearings.  I have shifted her from one division to another, in order to find an environment in which she could flourish or at least complete her service obligation.  She has appeared before me at CO’s mast on several occasions and been counseled by her departmental chain of command countless numbers of times.  In every instance she has maintained control of herself for a while, but soon reverted back to abhorrent and violent behavior.  She cannot accept the orders of superiors, nor can she work with any fellow shipmates.  She has threatened to damage herself, others and the ship.  By her own repeated actions, she has shown herself to be completely unfit for service in the Navy or any branch of the military.  Therefore, it is my strongest recommendation that MSSN V_ (Applicant) be separated from the United States Navy with an Other Than Honorable Discharge.

011025:	DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct due to a pattern of misconduct, authority:  NAVMILPERSMAN, Article 1910-140.

Partial Discharge Package

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20011025 under other than honorable conditions for misconduct due to a pattern of misconduct (A).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this, the Board found that the discharge was proper and equitable (B and C).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (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 she may feel that her medical condition 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 she was unsuitable for further service.  Her service record is marred by award of nonjudicial punishment (NJP) on two separate occasions for violating the UCMJ, Articles 91 and 117 thus substantiating the misconduct.  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, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.   At this time, the Applicant has not provided verifiable documentation of good character and conduct to mitigate her misconduct while on active duty.    

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 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 9, paragraph 9.3, EQUITY OF THE DISCHARGE. 

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 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

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