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

 ex-SHSA, USN
Docket No. ND05-00069 

Applicant’s Request

The application for discharge review was received on 20041013.  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.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050107.  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, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1.  My discharge was inequitable (Box 28) Narration Misconduct, Pattern of Misconduct.  I went AWOL once; I had a fine record until then, there were extenuating circumstances that were not taken into consideration.

2.  I complained about the continual ongoing sexual harassment, my superiors chose to ignore complaints. ”

Issues submitted by Applicant’s counsel/representative the AMERICAN LEGION:

“ We submit for your consideration, claim for benefits based upon service of the above named veteran, together with supporting evidence as indicated below: Evidence in Support of Claim, Copy of Marriage Certificate, Copy of Death Certificate, Certified Copy of Discharge, DD Form 293, Mar 2004

G_ M. T_ 
Department Service Officer.”

Documentation

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

Copy of Applicant’s DD Form 214
Copy of NAVCOMPT Standard Transfer Order, document # 132-93, dtd 1993 Mar 23
Copy of Detachment (Departing) Endorsement to Orders, dtd 23 Mar 1993
Copy of Letter from Applicant, (2 pages) dtd September 23, 2004
Copy of Marriage License, dtd 15 Oct 1992
Copy of Marriage Certificate, dtd 17 Oct 92 
Copy of Computer Applications Specialist Program Transcript, dtd 2/17/04
Copy of Request for Criminal Records Check, dtd 2004 Mar 10
Copy of Pennsylvania Child Abuse History Clearance, dtd 3/17/04
Copy of note from A_E_, M.D., dtd 4/27/92
Copy of Obituary, not dated
Copy of Certificate of Death, dtd 21 May 92
Letter of reference from R_ and N_ Mc_, dtd 4/3/2004
Copy of letter of reference from Mrs. S_ O_, not signed and not dated 
Letter of reference from C_ A. C_,  April 2, 2004
Copy of Enlisted Performance Evaluation Report, dtd 3 Feb 92 
Copy of Enlisted Performance Evaluation Report, dtd 90 Feb 13
Copy of Individual Evaluation Input, dtd 93 Jan 31
Copy of  Letter of Commendation, Commander Fleet Activities Yokosuka, Japan, not 	dated
Copy of Memorandum, Information and Personnel Tasking for Sunset Parade, 15 July 	1992
Copy of Letter of Appreciation, Commander Fleet Activities, Yokosuka, 3 Sep 1992
Copy of Enlisted Performance Record, 93 Jun 02
Copy of Enlisted Performance Evaluation Report, (2 sided) dtd 8 Sep 92
Copy of Interim Narrative Summary/Nursing Discharge Note, (2 sided) dtd 26 Mar 93
Copy of Deserter Report, dtd 93 May 03 
Copy of Report of Declaration of Desertion, (2 pages) dtd 28 Apr 93
Copy of letter from Naval Hospital Oakland, dtd 16 Apr 93
Copy of Booker Rights Counseling, dtd 5 May 93
Copy of Court Memorandum, dtd 93 Jun 02
Copies of 2 pages from Applicant’s Medical Records, dtd 6/16/93
Copy of letter from Legal Office Manager, Naval Hospital Oakland, dtd 2 June 93
Copy of Report and Disposition of Offenses, dtd 2 June 93
Copy of Notice of Administrative Board Procedure Proposed Action, (2 pages) 4 Jun 93
Copy of Emergency Room Report, (2 pages) 15 Jun 1993
Copy of Statement of Awareness and Request For, or Waive of , Privileges, (2 pages) dtd 30 Jul 93
Copy of Adverse Performance Evaluation Report, dtd 30 Jul 93
Copy of Enlisted Performance Evaluation Report, dtd 93 Aug 10
Copy of 1 page from the Applicant’s Medical Record, dtd 26 Mar 93
Copy of Recommendation for Separation, dtd 2 Aug 93
Copy of 1 page from Applicant’s Medical Record, 9 Aug 93
Copy of Transient Personnel Unit, Check-In Sheet, 11 Aug 93
Copy of Standard Transfer Order, dtd 93 Aug 10
Copy of Applicant’s Request for Administrative Leave, dtd 11 Aug 93
Copy of BUPERS Admin Discharge Authorization, dtd 16 Aug 93
Copy of Enlisted Performance Record, dtd 93 Aug 19
Copy of History of Assignments, dtd 93 Aug 19
Copy of Separation Without Orders, dtd 93 Aug 19 
Family Photo, not dated

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	900223 - 900312	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  900313		Date of Discharge:  930819

Length of Service (years, months, days):

	Active:    03  04  04 
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  35

Highest Rate:  SHSA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.53 (3)		Behavior:  3.35 (4)		OTA:  3.53

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, OSR (2)

Days of Unauthorized Absence:  32

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

901212:	Applicant assigned to six months of limited duty due to broken foot.

910724:	Applicant returned to full duty status.

930108:	Applicant admitted to Naval Hospital Oakland Mental Health Department.

930326:	Applicant released from Naval Hospital Oakland Mental Health Department.
Diagnosis: Adjustment disorder with mixed disturbance of emotions, conduct and somatic features.   Personality disorder NOS with narcissistic and histrionic features EPTE.  Alcohol abuse.
Hospital Course: Patient angry, noncompliant at times, fragile self-esteem, refused to return to her command.  Member’s command elected not to have her return. 
Summary: “ As a result of this lengthy psychiatric evaluation, it is determined that this service member manifests no nervous or mental disorder which would warrant medical separation due to psychiatric illness.  She does manifest a severe personality disorder, which renders her incapable of conforming to the standards of military service. She is able to distinguish right from wrong and can adhere to the right.  She has the capacity to understand the nature of the charges against her and can cooperate intelligently in the conduct of her own defense.”
 
930329:	Applicant declared UA at 0800, 930329.

930427:	Applicant declared a deserter this date.

930505:	Report of Return of Deserter.  Applicant returned to military control at 2345, 930430, at Naval Hospital Oakland.

930602:	NJP for violation of UCMJ, Article 86:  Absent from unit from 93 March 29 – 93 April 30.
	Award: Reduction to paygrade E2, forfeiture of $456.00 pay per month for 2 months, restriction for 45 days and extra duty for 45 days.  No indication of appeal in the record.

930607:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

930730:	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.

930802:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.  Commanding Officer’s comments: “SHSA S_ was awarded nonjudicial punishment on 2 June 1993 for a 32 day unauthorized absence.  A punitive discharge us authorized for such an offense if tried by court-martial.  It is my opinion that SHSA S_ has no potential for further useful Naval Service.  Accordingly, I recommend that she be separated with an Other Than Honorable discharge.

930816:	Applicant offered in-patient treatment at Department of Veterans Affairs (DVA) hospital per 10 U.S. C. 1090 and MILSPERMAN 3610240 due to drug and/or alcohol dependency.  Applicant decline DVA treatment.

930816:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19930819 under other than honorable conditions for misconduct due to commission of a serious offense (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.  The Applicant contends that her discharge was inequitable because she “went A.W.O.L. once, I had a fine record until then.”  The Board determined that the Applicant’s DD-214 Block 28 contained an administrative error.  The discharge authority approved the Commanding Officer’s recommendation of the Applicant’s discharge with a characterization as other than honorable due to misconduct-commission of a serious offense.  The Applicant’s DD-214 Block 28 reads “Misconduct-Pattern of Misconduct”, which is an administrative error. 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.  An 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 a nonjudicial punishment proceeding for violation of Article 86 (UA for 32 days, declared a deserter) of the UCMJ.  Also, the Applicant was diagnosed as an alcohol abuser with an adjustment disorder by a competent medical authority on 19930326.   The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her contract with the U.S. Navy and falls far short of that required for an upgrade of her characterization of service.  Relief is not warranted.

Issue 2.  The Applicant contends that her discharge was inequitable because “there extenuating circumstances that were not taken into consideration”.  The NDRB recognizes that serving in the U.S. Navy is challenging.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  It must be noted that most members of the Navy serve honorably and therefore earn their honorable discharges.  In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  The NDRB found that the Applicant's service was equitably characterized.  Relief denied.

The Applicant states that she “complained about the continuing ongoing sexual harassment, my superiors chose to ignore complaints.” In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.   The record, however, contains no evidence of any wrongdoing by the Applicant’s commanding officer or anyone else for that matter in the discharge processing.  The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary.  As such, this Board presumed that Applicant’s discharge was regular in all respects.  Relief denied.  

Issue 4. The Applicant’s representative submitted for consideration, “a claim for benefits based upon the service of the veteran [Applicant] together with supporting evidence.”  NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, 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, is considered.  The applicant provided 47 documents for the Board’s review, of which 6 were documentation of her post-service.  The applicant's efforts need to be more encompassing than those provided.  For example, the applicant could have produced evidence of a verifiable employment record, documentation of community service, and alcohol rehabilitation in order for consideration for clemency based on post-service conduct.  At this time, the applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge.  Therefore, relief is inappropriate.  

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 her 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 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.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article, 86, for unauthorized absence for a period in excess of 30 days if adjudged at a Special or General Court-Martial.

C.  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.

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

E.  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