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

 
 ex-SR, USNR
Docket No. ND04-01334

Applicant’s Request

The application for discharge review was received on 20040823.  The Applicant requests his characterization of service received at the time of discharge changed to honorable/general (under honorable conditions).  The Applicant requests a personal appearance hearing discharge review before the Board in the Washington, D.C. Metropolitan area.  The Applicant listed a Representative from Disabled American Veterans as the representative on the DD Form 293.

Decision

A personal appearance hearing was conducted in Washington, D.C. on 20050928.  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/Misconduct - Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

Issues submitted at time of Applicants personal appearance hearing supersede those submitted originally on Form DD-293.

“Due to inequity/impropriety; as a result of “mental conditions” not treated for while in military service, behavior/conduct was inappropriate, the personality disorder was not the only condition Mr. I_ (Applicant) was suffering from”.

Documentation

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

Applicant’s DD Form 214 (2)
Copy of Certificate of Birth
	Letter from Applicant to Congressman R_ N_, dated 27 Aug, 2005
	MHS-Psychological evaluation, dated 28 Apr, 2004

PART II - SUMMARY OF SERVICE

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

	Inactive:  None
	Active:    None

Period of Service Under Review:

Date of Enlistment:  890209		Date of Discharge:  910201

Length of Service (years, months, days):

	Active:    01 08 09
	
Age at Entry:  20			Years Contracted:  8 (3 active)

Education Level:  12			AFQT:  41

Highest Rate:  SR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (1)		Behavior:  2.80 (1)		OTA:  3.00

Military Decorations:  None

Unit/Campaign/Service Awards:  AFEM, SSDR

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Pattern of misconduct, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

890523:	Commenced 36 months of active duty under the Active Mariner program.

890913:	Applicant reported for duty, USS New Jersey (BB-62).

900109:	NJP for violation of UCMJ, Article 134: (2 Specifications), Spec 1: Communicate a threat to a PO2 to kill him, Spec 2: 891219, unlawfully carrying a concealed weapon, to wit: a three inch lock blade knife.
	Award: Forfeiture of $150.00 pay per month for 1 month, restriction and extra duty for 20 days.  No indication of appeal in the record.

900224:	Retention Warning:  Advised of deficiency (communicating a threat to a PO2, carrying a concealed weapon), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

900406:	NJP for violation of UCMJ, Article 128: 900403, commit an assault on another service member, to wit: striking and kicking him about the head and mid-body with excessive force.
	Award: Forfeiture of $362.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

900622:	NJP for violation of UCMJ, Article 91: 900614, was disrespectful in language toward a PO1.
	Award: Forfeiture of $150.00 pay per month for 2 months, restriction and extra duty for 21 days.  No indication of appeal in the record.

900719:	NJP for violation of UCMJ, Article 86: (2 Specifications), Spec 1: 900712, without authority go from appointed place of duty, to wit: R-DIV passageway, Spec 2: 900614, UA from afternoon muster; violation of UCMJ, Article 91: 900614, was disrespectfully in language toward a PO1.
	Award: Forfeiture of $200.00 pay per month for 1 month, restriction and extra duty for 15 days.  No indication of appeal in the record.

900824:	Commanding Officer USS NEW JERSEY (BB-62) notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of convenience of the government on the basis of personality disorder as evidenced by your diagnosis made by competent military medical authorities; and by reason of misconduct due to a pattern of misconduct as evidenced by you receiving three or more punishments under the UCMJ during your current enlistment; and by reason of misconduct, specifically by committing a serious offense as evidenced by communicating a threat to kill a petty officer on 891218, committing assault on a service member on 900406, and disrespectful in language toward a first class petty officer on 900714.

900831:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

901023:	Commanding Officer USS New Jersey (BB-62) appointed Administrative Board.

901029:	An Administrative Discharge Board, based upon preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

901220:	Commanding Officer USS New Jersey (BB-62) recommendation of discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by three or more punishments under the UCMJ, all within the current enlistment; misconduct due to commission of a serious offense.  

910116:	CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

910201:	Discharged.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19910201 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 all available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  A under other than honorable conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by four nonjudicial punishment proceedings for violations of UCMJ Article 91 (disrespect), Article 86 (unauthorized absence), Article 134 (communicating a threat and carrying a concealed weapon), and Article 128 (assault on another service member).  Each violation of Articles 91, 128 and 134 is considered the commission of a serious offense and as such is punishable by a punitive discharge if convicted by courts-martial.  A pattern of misconduct, the reason for the Applicant’s discharge, is defined as more than one nonjudicial punishment during a single enlistment.  There is credible evidence in the record that the Applicant was guilty of multiple infractions of the UCMJ.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Separation under these conditions generally results in characterization of service of under other than honorable conditions.  The Board could discern no impropriety or inequity and therefore considered his discharge proper and equitable.  Relief denied.

The Applicant contends that he was not responsible for his behavior because of his anxiety disorder and he was improperly diagnosed and treated.  When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline.  Nevertheless, the Applicant bears the burden of presenting substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support his contentions.  The Applicant’s statements alone do not overcome the government’s presumption of regularity.  The NDRB does not consider the Applicant’s stated condition, the implied incorrect diagnosis, nor the medical treatment given to the Applicant to be of sufficient nature to exculpate the Applicant’s misconduct.  In fact, the NDRB sees no connection between the Applicant’s misconduct and his alleged medical condition.  The record clearly reflects his willful misconduct, demonstrating he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  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 Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  The Applicant submitted a copy of a psychological examination conducted 27 August, 2004 by a civilian doctor.  The Board deemed the Applicants post service insufficient to mitigate his misconduct while on active duty.  Relief denied.  

The Applicant has exhausted his opportunities for review by the NDRB.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560A, Change 8 effective 21 Aug 89 until 14 Aug 91), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - A PATTERN OF MISCONDUCT.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023