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

 
    ex-SR, USN
Docket No. ND05-00130

Applicant’s Request

The application for discharge review was received on 20041029.  The Applicant requests the characterization of service received at the time of discharge be changed to general (under honorable conditions).  The Applicant requests a documentary record review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20050608.  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 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1. My discharge was inequitable because it was based on past offenses with total disreguard to the last offense I was being accused of.”

“2. The discharge is improper because the cases were never clearly reviewed; my medical record stated that I had been in council with the ship’s therapist for a total of at least 6 months due to severe induced stress and coping issues.”

“3. My discharge is improper because of the ruling in D.R.B. prior to seeing the Capt. for the last time.  The board found me not guilty of the charge of theft, but saw that if I had remained in the navy, or at least onboard the USS KITTY HAWK, CV-63, I would end up in a more serious matter, so I was then recommended for mast.”

Documentation

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

Commanding Officer’s Recommendation for Separation to Commander, Carrier Group FIVE (4 pages)
Letter from Applicant

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	010922 - 010924	COG
	Active:   USN 			None

Period of Service Under Review:

Date of Enlistment:  010925		Date of Discharge:  030507

Length of Service (years, months, days):

	Active:    01  07  13
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  68

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.00 (1)		Behavior:  1.00 (1)		OTA:  1.67

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, NMCOSR

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

020323:	Mental Health Appointment:  Applicant seen for scheduled appointment, diagnosed adjustment disorder and job related stress.

020731:	Psychological Evaluation:  Applicant diagnosed Axis II:  301.20 Schizoid Personality Disorder, Axis IV Job dissatisfaction negative interaction with peers, Axis V:  50/100 = serious impairment in social functioning.  Applicant considered to be fully competent to be discharged to his own custody and does not present a danger to self or others.  Found fit for full duty.

021119:	NJP for violation of UCMJ, Article 128:  Simple assault.
	Award:  Forfeiture of $645.00 pay per month for 1 month (suspended for 6 months), restriction and extra duty for 30 days, reduction in rate (suspended for 6 months).  No indication of appeal in the record.

021119:	Retention Warning:  Advised of deficiency (CO’s NJP held this date for violation of UCMJ, Article 128-Simple assault), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

021125:	NJP for violation of UCMJ, Article 86 (3 Specifications):  Unauthorized absence.
	Award:  Confinement for 3 days on Bread & Water, forfeiture of $645.00 pay per month for 1 month, reduction to E-2.  No indication of appeal in the record.

030129:	Psychological follow-up:  Diagnosed Axis II:  schizoid personality disorder, unspecified, Axis IV:  job dissatisfaction, negative interaction with peers, Axis V;  65/100 – mild impairment in social functioning.  Applicant considered to be fully competent to be discharged to his own custody and does not present a danger to self or others.  Found fit for full duty.

030220:	Punishment of reduction in rate to E-2 and forfeiture of $645.00 pay per month for 1 month suspended at CO’s NJP of 021025 vacated this date due to continued misconduct.

030220:	NJP for violation of UCMJ, Article 117:  Provoking speeches or gestures; violation of UCMJ, Article 128: Simple assault.
	Award:  Forfeiture of $601.00 pay per month for 2 month, restriction and extra duty for 30 days, reduction to E-1.  No indication of appeal in the record.

030418:	NJP for violation of UCMJ, Article 121:  Larceny.
	Award:  Forfeiture of $600.00 pay per month for 2 months, restriction and extra duty for 30 days.  No indication of appeal in the record.
 
030418:	USS KITTY HAWK (CV 63) notified Applicant of intended recommendation for discharge by reason of misconduct due to a pattern of misconduct and by reason of misconduct due to the commission of a serious military offense.  Applicant notified that if discharge is approved, the least favorable characterization of service possible is under other than honorable conditions.

030418:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

030419:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct and misconduct due to commission of a serious offense. 

030419:	Commander, Carrier Group FIVE authorized the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030507 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.  Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question.  No such impropriety or inequity is evident during the Applicant’s enlistment.  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 record contains evidence that the Applicant’s service was marred by instances of assault, larceny, provoking speech or gestures, and unauthorized absences.  This misconduct resulted in four separate nonjudicial punishment proceedings (NJP) for violations of UCMJ Articles 86, 117, 121, and 128.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy.  Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service.  Relief is not warranted.

Issue 2.  The Applicant implies that mental illness was the cause of his misconduct.  Notwithstanding the veracity of his claims, such a condition will not normally excuse a servicemember from legal liability for his misconduct, unless the Applicant can show a lack of mental responsibility through the presentation of substantial and credible evidence.  The evidence of record failed to demonstrate that the Applicant was unable to appreciate the nature and quality or the wrongfulness of his acts.  In fact, the evidence of record indicates repeatedly that the Applicant was deemed fit for full duty by the ship’s psychologist and that he was competent to be released in his own custody.  As such, the Board presumed that the Applicant was responsible for his misconduct and concluded that he should be held accountable for his actions.  Relief denied.

Issue 3.  The Applicant implies that his discharge was improper due to certain irregularities that lead to his last NJP.  The Applicant must establish any of his claims through the presentation of substantial and credible evidence.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that there were any irregularities in his NJP or discharge processing.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  Relief denied.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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.  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), re-issued October 2002, effective 22 Aug 02 until Present, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

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