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

  ex-FCSA, USN
Docket No. ND05-00410

Applicant’s Request

The application for discharge review was received on 20050103.  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 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 20050428.  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.  “During my first 2 ½ years of service in the Navy I did well.  I was a good enlistee and met my requirements.  I met a girl via the Internet and shortly there after we married and had a baby girl.  Unknown to me my wife was bisexual and soon my domestic life began to deteriorate.  She began to see other women and soon her lesbian lover had moved in with us.  Unable to cope I turned to the Navy for help.  The Navy misdiagnosed my condition and the medication given to me only increased my despondency.  During my deployment in 2003 my wife left me for her female lover taking my daughter with her.  However, not before she left me nearly $20,000 in debt.  Upon my return the Navy attempted to counsel me but it was clear they couldn’t help and did not help.  I was forced to pay child support, while my wife’s lesbian lover was urging my daughter to call her “Dad”.  She wouldn’t even let me see my daughter unless her lover accompanied her.  Suffering from a complete mental breakdown I felt completely alone and was unable to handle my affairs.  My mental problems addled my decision-making.  Currently I am under the care of a psychiatrist who is treating me for severe ADHD.  I was told the medication the Navy prescribed only exacerbated the problem.  With the help of my parents I have declared bankruptcy, and I’m seeking an amicable divorce from my estranged wife who fled to New Mexico.  I want to get on with my life.”

Documentation

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

Ltr from Asher Psychiatry and Psychotherapy dtd 041213
Applicant’s DD Form 214  (Copy 4)
Notice of Chapter 7 Bankruptcy dtd 041124
Petition for Dissolution of Marriage undated, unsigned
Reference from, D_ & E_ V_ dtd 040127
Reference from D_ W. V_, dtd  (3 pages)
Reference from K_ C_ dtd 050202
Employment verification dtd 050201

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	000325 - 000820	COG
	Active:  None

Period of Service Under Review:

Date of Enlistment:  000821		Date of Discharge:  040527

Length of Service (years, months, days):

	Active:    03  09  07		[Does not exclude lost time]
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 (24 months extension)

Education Level:  11+		AFQT:  73

Highest Rate:  FC3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.00 (3)		Behavior:  1.00 (3)		OTA:  2.00

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM, SSDR (2), NDSR, HSM

Days of Unauthorized Absence:  56

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:

020108:	NJP for violation of UCMJ, Article 86:  Unauthorized absence.  Found guilty of offense.  [Extracted from Commanding Officer, USS CARTER HALL’s ltr of 040501.] 

020108:	Retention Warning:  Advised of deficiency (Violation of UCMJ, Art. 86: Unauthorized Absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

020213:	Medical Diagnosis:
	Impression:  ADHD EPTE by Hx, adjustment disorder

020228:	Retention Warning:  Advised of deficiency (Upon entry into the naval service, you informed your recruiter that as a child you were diagnosed with Attention Deficit/Hyperactivity disorder (ADHD) but were no longer taking medication.  You were allowed to enlist under the AETC Program.  You successfully completed Tech Core and FC “A” School and then went to the Fleet TAD to work on board USS MITSCHER awaiting your “C” school.  Upon your return to Service School Command and enrollment in “C” school, you referred yourself to MHU, Naval Hospital Great Lakes suffering from depression due to family problems.  MHU confirmed your ADHD and diagnosed you with a Depressive Disorder, yet found you fit for duty.  At this time, the MHU doctors have not recommended medication for your condition), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

021202:	Medical Diagnosis:	
	AXIS I:  	Depressive Disorder NOS
			ADHD, combined type, residual symptoms
	AXIS II:	No diagnosis
	AXIS III:	Hypermobile knees
	AXIS IV:	Family stressors, occupational stressors
	AXIS V:	GAF 65

030825:	Medical Diagnosis:
AXIS I: 	Mild depressive episode, anxiety, ADD
	AXIS II:	0
	AXIS III:	NC
	AXIS IV:	Marital Discourse, Deployment

031209:	NJP for violation of UCMJ, Article 86 (1 Spec):  Unauthorized absence on active duty, onboard USS CARTER HALL, on or about 0700, 031112, without authority, absent himself from his unit, to wit:  USS CARTER HALL, located at NAB Little Creek, Virginia, and did remain so absent until on or about 1123, 031118.
	Award:  Restriction and extra duty for 20 days, reduction to E-3.  No indication of appeal in the record.

031216:	Medical Diagnosis:
	AXIS I:  	AD/HD
Adjustment Disorder with mixed disturbance of emotions and conduct, resolved
		AXIS II:	Deferred
		AXIS III:	None
		AXIS IV:	Routine Military Stressors
		AXIS V:	GAF 75-80

040429:	NJP for violation of UCMJ, Article 86 (2 Specs):  
Specification 1:  Unauthorized absence on active duty, onboard USS CARTER HALL, on or about 0600, 040311, without authority, absent himself from his unit, to wit:  USS CARTER HALL, located at NORSHIPCO Shipyard Norfolk, Virginia and did remain so absent until on or about 1000, 040316.
Specification 2:  In that FCSN N_ V_ (Applicant), USN, on active duty, onboard USS CARTER HALL, on or about 040317, without authority, absent himself from his unit, to wit:  USS CARTER HALL, located at NORSHIPCO Shipyard, Norfolk, Virginia and did remain so absent until on or about 040428.
Award:  Forfeiture of $698.85 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

040430:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service possible as under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct.

040430:	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 

040501:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to a commission of a serious offense.  Commanding Officer’s comments (verbatim):  I have determined that FCSA V_ (Applicant) has no potential for future Naval Service.  He has been to Commanding Officer’s NJP three times for unauthorized absence, two of which were held before me within the past 4 months.  The length of his absence has increased each time and he was declared to be in deserter status during his last UA period.  He has become an administrative burden to his division, as he has been stripped of his security clearance and can no longer enter the divisional spaces or work on the equipment.  In addition to this, his division has spent countless hours counseling him on personal hygiene and personal responsibility that as a third class petty officer should not have been an issue.  During his last mast appearance he stated that he felt that leaving the Navy would be the best course of action for him.  Based on these facts and FCSA V_ (Applicant) statement I most strongly recommend that he be separated from the Navy with an under Other Than Honorable discharge at the earliest opportunity.  He has waived his right to an Administrative Board.

040524:	Commander, Amphibious Group TWO, authorized Commanding Officer, USS CARTER HALL (LSD 50) to discharge the Applicant under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040527 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 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.  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 retention warning and three nonjudicial punishment proceedings for violations of Article 86 of the UCMJ.  The Applicant spent a total of 56 days in unauthorized absence.  The Applicant’s absence from 20040317 to 20040428 constitutes a serious offense.  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 and falls far short of that required for an upgrade of his characterization of service.  Further, the summary of service clearly documents that misconduct due to a pattern of misconduct was the reason the Applicant was discharged.  No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged.  Relief is not warranted.

The Applicant contends his misconduct was the result of his family situation, that he suffered a “complete mental breakdown” and that his counseling in the Navy did not help him.  While he may feel that his marriage was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. There is no evidence in the record to suggest that Applicant was not responsible for his misconduct or that he should not be held accountable for his actions.  In the Applicant’s case, the Board could discern no impropriety or inequity in the Applicant’s discharge.  Therefore, the NDRB considered the Applicant’s discharge proper and equitable.  Relief denied.

Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  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.  As of this time, the Applicant has not provided sufficient documentation for the Board to consider.  Relief denied.

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), re-issued October 2002, effective 22 Aug 2002 until Present, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - 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