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

FOR OFFICIAL USE ONLY

  ex-MSSR, USN
Docket No. ND05-00584

Applicant’s Request

The application for discharge review was received on 20050218.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.   The Applicant requests a personal appearance hearing discharge review before the Board in the Washington, D.C. Metropolitan area.  The Applicant listed Civilian Counsel as the representative on the DD Form 293.

Decision

A personal appearance hearing discharge review was conducted in Washington, D.C. on 20051005.  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

Additional issues submitted by Applicant’s civilian counsel:

“1.  Discharge was inequitable in that Applicant went UA returned home to Iowa, discussed problems with family, then voluntarily returned to unit to end his UA at 7 days – normally an NJP offense.

2.  Discharge was inequitable in that Applicant’s UA of 7 days was terminated by his surrender back to the unit and he could easily have been sent to his ship to continue honorable service.

3.  Discharge was improper and inequitable in that Applicant was discharged as a result of his self-referral to Naval medical authorities for mental problems – he was discharged rather than given treatment.

4.  Discharge was improper and inequitable in that the Naval medical authorities did not diagnose his condition as bi-polar disorder, did not treat the illness and, in effect, abandoned a wounded sailor.

5.  Discharge was improper and inequitable in that Applicant, on 17 MAR 94, was persuaded to waive his right to an Admin Discharge Board, when Naval authorities then knew Applicant had only recently been released from the hospital with mental problems and couldn’t understand what he was waiving.

6.  Equity-Post Service.”

Documentation

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

Statement from Applicant, dated September 19, 2005
Character Reference Letter from S_ N_, dated April 21, 2005
Character Reference Letter from A_ W_ W_, dated April 29, 2005
Character Reference Letter from G_ H_, dated April 28, 2005
Character Reference Letter from R_ N_ A_, dated April 28, 2005
Character Reference Letter from T_ A_, dated May 11, 2005
Character Reference Letter from J_ A_, dated May 12, 2005
Character Reference Letter from J_ B_, undated
Character Reference Letter from M_ R_, dated May 14, 2005
Character Reference Letter from M_ S_ N_, dated May 15, 2005
Character Reference Letter from K_ N_, undated
Character Reference Letter from C_ W_, undated
Summary of Psychiatric Examination from M_ A. K_, M.D., M.P.H., dated September 1, 1994
Photograph of Applicant
Applicant’s DD Form 214
Statement from Applicant, dated January 18, 2005 (4 pages)
Applicant’s Resume
Photograph of Applicant
Applicant’s Service Record Documents (39 pages)
Applicant’s Medical and Psychiatric Documents (44 pages)
Copy of Previous DD Form 293 (2 pages)
Letter from B_ J. W_, Esq., dated July 9, 1999
Copy of Brief in Support of Application (14 pages)  

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	930224 - 930621	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  930622		Date of Discharge:  940407

Length of Service (years, months, days):

	Active:    00  09  16
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 (12 month extension)

Education Level:  12			AFQT:  91

Highest Rate:  MSSR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NOB*		Behavior:  NOB		OTA:  NOB

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  7

*Not observed

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:

940121:	Applicant commenced a period of unauthorized absence at 0800 this date.

940121:	Applicant missed movement of USS PELELIU this date.

940128:	Applicant surrendered from unauthorized absence at 2250 this date (7 days).

940207:	Naval Medical Center, Narrative Summary: Chief Complaint:
Depression.  Discharge Diagnosis: Axis I:  1.Adjustment disorder with mixed disturbance of emotions and conduct. 2. History of THC abuse. 3. Occupational problems.  Axis II:  Borderline personality disorder with avoidant and schizoid traits.  Axis III:  Status post left varicocelectomy with chronic pain.  The Applicant manifests a long-standing disorder of character and behavior which is of such severity to render this individual incapable of serving adequately in the United States Navy.  Although not considered suicidal, this member is judged to represent a continuing risk to self or others if retained in the Naval service.

940211:	Message from USS PELELIU to BUPERS:  Request authority to transfer Applicant TEMDU to TPU. Applicant being separated by reason of convenience of the government – personality disorder.  Commanding Officer, USS PELELIU, recommends discharge warranted by service record.

940222:	BUPERS:  Transfer Applicant to TPU San Diego for separation processing.

940311:	NJP for violation of UCMJ, Article 86:  Unauthorized absence from 0800, 940121 to 2250, 940128 (7days/S); violation of UCMJ Article 87:  Missing ship’s movement on 940121.
	Award:  Forfeiture of $200.00 pay per month for 1 month, restriction and extra duty for 20 days.  No indication of appeal in the record.

940317:	Applicant notified of intended recommendation for discharge by reason of misconduct due to the commission of a serious offense and convenience of the government due to personality disorder.  Applicant notified that the least favorable characterization of service possible is under other than honorable conditions.

940317:	Applicant advised of 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.  Applicant did not object to the separation.

940318:	Commanding Officer, Transient Personnel Unit, San Diego, CA, recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and convenience of the government due to personality disorder.  Commanding Officer’s comments (verbatim):  “MSSR A_ (Applicant’s) missing ship’s movement and severe personality disorder preclude his further retention in the naval service.  Based on the information contained in paras 1 through 13, I recommend that MSSR A_ (Applicant) be separated with a other than honorable discharge by reason of misconduct.”  

940330:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

000522:	NDRB documentary record review Docket Number ND99-01128 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19940407 under other than honorable conditions for misconduct due to commission of a serious offense (A and 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).  

Issues 1 and 2:  The Applicant, through counsel, contends that his discharge was inequitable because a 7 day unauthorized absence terminated by surrender is normally an NJP offense and that he could have been easily sent back to his ship to continue his honorable service.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service.  The Applicant’s service was marred by a 7 day unauthorized absence, missing ship’s movement, and illegal drug use.  The Applicant’s misconduct is aggravated by the fact that he knew his unauthorized absence would result in missing a 6 month WESTPAC deployment.  Based upon this evidence, the Board could not conclude that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy.  A preponderance of the evidence reviewed supports the conclusion that the Applicant committed a serious offense, that based on the severity of the offense, separation was appropriate, and that an under other than honorable conditions discharge was warranted.  The Applicant’s issue is without merit.  As such, relief is denied.

Issue 3:  The Applicant, through counsel, contends that his discharge was improper and inequitable because he was discharged without treatment after a self-referral for a mental condition.  Normally, if a member is diagnosed as a continuing risk of harm to self or others if retained in the Naval service, as the Applicant was, separation processing is expedited and treatment can be obtained through the Veterans’ Administration.  As such, the NDRB unanimously concluded that relief on this issue is not warranted.

Issue 4:  The Applicant, through counsel, contends that his discharge was improper and inequitable because the Naval medical authorities did not diagnose his condition as bi-polar disorder, did not treat the illness and, in effect, “abandoned a wounded sailor”.  Although the Applicant was diagnosed as bi-polar 11 years subsequent to his Naval service, there is no evidence that he suffered from this disorder while on active duty.  Even if the Applicant could satisfactorily show he suffered from bi-polar disorder, the NDRB is convinced that the Applicant’s discharge would have been substantially the same.  Applicable regulations require that separations based upon misconduct take precedence over separations based upon medical conditions.  As such, the Applicant would have still been processed for misconduct due to the commission of a serious offense and been discharged under other than honorable conditions based on that misconduct.  Any possible error in the diagnosis of the Applicant’s conditions was procedural in nature and not prejudicial to the Applicant’s separation from active duty or to the characterization of his service.  The Applicant’s issue is without merit.  Relief denied.

Issue 5:  The Applicant, through counsel, contends that his discharge was improper and inequitable because he was persuaded to waive his administrative discharge board after being released from a mental hospital and he did not have the capacity to understand the consequences of this decision.  Under applicable law, a person is presumed to be competent and legally responsible for his actions.  Only through a showing of diminished mental capacity by virtue of an inability to comprehend his surroundings or understand the consequences of his actions, will a member be absolved of legal liability for his actions.  The evidence of record failed to demonstrate that the Applicant was unable to appreciate the nature and quality of his actions.  Through his testimony to the Board, the Applicant indicated that he was well aware that he was in a holding company at Transient Personnel Unit awaiting his separation processing.  He further testified that at the time in question, he understood that by waiving his rights he would be discharged from the Navy and that discharge would be characterized as under other than honorable conditions.  Additionally, the Applicant was evaluated by Naval Mental Health Professionals on 19940128 and found to be “responsible and accountable for all his actions.”  Based on this evidence, the Board presumed that the Applicant was fully aware and cognizant of the consequences of his actions.  As such, relief on this issue is not warranted.  Relief denied.

Issue 6:  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 could 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 Board received and considered all of the Applicant’s testimony and submissions, including his numerous character reference letters, educational achievements, work with children in China, employment history, and medical records.  After careful consideration, the Board concluded the Applicant’s post-service achievements have been insufficient to mitigate his misconduct while in the Naval service.  Relief denied.

The following if provided for the edification of the Applicant.  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 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 87, missing movement, 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 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