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

FOR OFFICIAL USE ONLY

   ex-SMSR, USN
Docket No. ND05-00624

Applicant’s Request

The application for discharge review was received on 20050301.  The Applicant requests the Discharge 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 National Capital Region.  The Applicant did not designate a representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051027.  After a thorough review of the available 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 by reason of misconduct due to commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application: 

“The reason that I am requesting a hearing is so that I may be heard in front of a board chosen by the Navy to hear my case.  I would like to explain why I would like my discharge upgraded so that I could re-enlist into the Navy.  A lot of my issues that I had when I was in I have dealt with.  I had a hard time adjusting to military when I first joined.  I will not make excuses for my actions when I was in. I should’ve been able to do my time honorably but I didn’t. for that I would like to apologize to everyone.”

Documentation

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

Criminal Record Check Letter, dtd January 4, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20000126 – 20000508		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20000509		Date of Discharge:  20020123

Length of Service (years, months, days):

	Active:    01  08  07  (Excludes lost time)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  8 days
	Confinement:		  none

Age at Entry:  18 

Years Contracted:  4 (12 month extension)

Education Level:  12				AFQT:  42

Highest Rate:  SMSA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0 (1) 		Behavior:  3.0 (1) 		OTA:  3.00 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Sea Service Deployment Ribbon, Armed Forces Expeditionary Medal.

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

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

Chronological Listing of Significant Service Events: 

000126:	Pre-service enlistment waiver approved for 1 Chart “C” non-minor misdemeanor (petty larceny).

000609:	Recruit Mental Health, Naval Hospital Great Lakes evaluation:
	Diagnosis:  
AXIS I:  V62.2 Occupational Problem
AXIS II:  V71.09 No Diagnosis Offered On AXIS II
Recommendation:  Return to full duty.

001219:	Applicant psychiatrically hospitalized at VA hospital while in unauthorized absence.  [Extracted from NMC Portsmouth, VA, Department of Psychiatry, Evaluation dated 010110.]

010105:	Applicant released from VA hospital, discharge diagnosis:  Adjustment Disorder with Mixed Disturbance or Emotions and Conduct and Alcohol Abuse.  [Extracted from NMC Portsmouth, VA, Department of Psychiatry, Evaluation dated 010110.]

010108:	NJP for violation of UCMJ, Article 86: Unauthorized absence.
Violation of UCMJ, Article 92: Failure to obey order or regulation.
	Award:  Restriction for 45 days, extra duty for 30 days.  No indication of appeal in the record.

011120:	NMC Portsmouth, VA, Department of Psychiatry, Outpatient Evaluation:
	Diagnosis:  
AXIS I:  	(1) Major Depressive Disorder, Single Episode, without psychotic features, mild to moderate severity.
(2)  History of alcohol abuse, although he has been sober for the last few months.
AXIS II:  	Dependent, passive-aggressive and immature personality traits.
AXIS III:  	Headaches, low back pain.
The Applicant was deemed psychiatrically fit and suitable for general military service, although this finding was subject to revision based on further evaluation and discussion with the Applicant’s command.

011127:	Applicant stood nonjudicial punishment proceedings for violations of Articles 86 and 87 of the UCMJ.  [Extracted from retention warning dated 011127.]

011127:	Retention Warning:  Advised of deficiency (CO’s NJP of 27 NOV01 for VUCMJ, Article 86 (Absence without leave) and 87 (Missing Movement)), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

011201:	Applicant began a period unauthorized absence.  [Extracted from DD214 and Doctor’s progress note of 011210.]

011209:	Applicant ended a period unauthorized absence.  [Extracted from DD214 and Doctor’s progress note of 011210.]

011210:	NMC Portsmouth, VA, Department of Psychiatry Doctor’s Progress Note:
	Impression:  “I feel that he meets the criteria for Personality Disorder NOS (with immature and passive-agressive and dependant personality traits).  I feel that his depression will likely resolve if he is discharged from the Navy and that the more accurate diagnosis is Adjustment Disorder with Depressed Mood.”
	Plan:  “1.  He is presently deemed psychiatrically unsuitable for Naval service in any capacity due to this Personality Disorder NOS that existed before he entered the Naval Service and will not likely improve or remit with military mental health treatment.  This Personality Disorder is a longstanding disorder of character.  2.  I most strongly recommend that his Command initiate an expeditious administrative separation for Personality Disorder NOS.  If he is retained in the Navy, he will be at significant, and high, ongoing risk for suicide or serious self harm, and he will likely be an ongoing administrative burden.  He does not presently require psychiatric hospitalization.”

020123:	DD214:  Applicant discharged under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  

Service Record did not contain the Administrative Discharge package.
Service Record is missing elements of information (NJP of 011127).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020123 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of under other than honorable conditions.  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  The Board presumed regularity in the conduct of governmental affairs (E).

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 two nonjudicial punishment proceedings for violations of Articles 86, 87 and 92 of the UCMJ.  Violations of Articles 87 and 92 are considered serious offenses.  The Applicant’s conduct is considered a violation of the special consideration given the Applicant upon his enlistment evidenced by a waiver granted for his non-minor misdemeanor for petty larceny.   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.  Relief is not warranted.

The Applicant contends that his discharge was improper because he, “had a hard time adjusting to military when I first joined.”  While he may feel that an adjustment problem was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated 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.

The following is provided for the edification of the Applicant.  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.  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 and documentation of community service.  As of this time, the Applicant has not provided sufficient post-service documentation for the Board to consider.  Relief is not warranted.

Regarding the Applicant’s desire to reenlist, 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.  Reenlistment policy of the naval service is promulgated by the Commander, Navy Recruiting Command, 5722 Integrity Drive, Bldg 784, Millington, TN 38054.  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

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), Change 31, dated 20 Feb 01, effective 25 Jan 01 until 21 Aug 02, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 87, missing moment or Article 92, failure to obey an order/regulation.

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.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.

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