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

   ex-IC3, USN
Docket No. ND05-00721

Applicant’s Request

The application for discharge review was received on 20050322.  The Applicant requests his characterization of service received at the time of discharge changed to honorable.  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 20050727.  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: GENERAL (UNDER 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 service was of honorable character.  My intentions were to continue military service and apply for additional training (OCS, BUDS).  I had a wife with severe depression (documented) and missed ships movement due to an episode in which I feared for her well-being.
Sirs/Maam, I make no excuse for my poor judgment in handling the situation.  I present the facts as they affected me.  I only wish that my prior achievements were not overshadowed by my lapse in judgment.  I am very proud of my naval service, and believe I am wiser and more focused from it.”

Remarks: “I recognize my error in handling a situation which led to my discharge.
I ask that my accomplishments as a whole, pre & post be considered and my service be considered honorable.  I am very proud of my naval service, and would love to hang my Honorable Discharge on the wall with pride.”

Documentation

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

Letter from applicant, undated
Letter of reference, K_E. B_ MD, Sept 04, ‘01
Letter of reference, C_ L. A_, Aug 21, ‘02
Letter of appreciation, W_ A. H_, Mar 12, ‘97
Letter of gratitude, Doctors on Duty, June 24, ‘97
Letter of appreciation, R_C. T_, May 30, ‘96
Program for “Leadership Watertown 2005” (2 pages)
Letter of appreciation, U.S. Senator T_ D_, May 18, ‘04
Codington county dive rescue team membership of applicant (2 pages)
Application form for United States Muay Thai Association Inc.
Certificate of Applicant appointment as State Director, U.S. Muay Thai Assoc
Maric College course description
Maric College, Medical Assistant certificate of completion
Maric College, award of excellence
Certificate of lifetime membership to Psi Chi National Honor Society
Statement of CWO2 B_ potential witness for admin board 
Statement of ICC(SW) S_ potential witness for admin board 
Statement of IC1 G_ potential witness for admin board 
Comments from evaluation ending, Oct 19 ‘92
Comments from evaluation ending, Jun 30 ‘93
Letter requesting shore duty, H_ C. H_ III, MD, May 17 ‘94
Letter consultation, S_ F_ Ph.D., Mar 15 ‘94
Letter requesting separation, D_C. Z_ Ph.D., Nov 12 ‘93
Note regarding separation, Mar 11 ‘94
Listing of appointments and medications, D_ B_ (undated)
Letter to Board for Corrections of Naval Records, Nov 28 ‘94
Letter from Board for Corrections of Naval Records, Mar 01 ‘05
Resume’ of Applicant (2 pages)
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	900919 - 910806	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  910807		Date of Discharge:  940711

Length of Service (years, months, days):

	Active:    02 11 04	Does not exclude lost time
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 (24 months extension)

Education Level:  12			AFQT:  75

Highest Rate:  IC3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.80 (3)		Behavior:  3.40 (3)		OTA:  3.67

Military Decorations:  None

Unit/Campaign/Service Awards:  NER, .45 CPM, NDSM, SASM

Days of Unauthorized Absence:  14

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

920628:	Tripler Army Medical Center, 0253, Applicant seen and treated for alcohol related incident.

920703:	NJP for violation of UCMJ, Article 86: Absent from unit on 920627.
	Award: Forfeiture of $150 per month for 1 month, restriction and extra duty for 15 days.  Punishment suspended for 6 months.  No indication of appeal in the record.

920703:	Retention Warning:  Advised of deficiency, notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
940222:	To unauthorized absence 0700, 940222.

940222:	Missed ship’s movement.

940307:	From unauthorized absence 0700, 940307 (14 days/surrendered).

940317:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 940222-940307; violation of UCMJ, Article 87: Missed ship’s movement on 940222.
	Award: Forfeiture of $484 per month for 2 months, restriction and extra duty for 30 days, reduction to E-3.  Forfeiture, restriction and extra duty and reduction suspended for 6 months.  No indication of appeal in the record.
	
940318:	Fleet Mental Health Unit evaluation: Provisional diagnosis: Adjustment disorder.  Diagnostic Impressions: AXIS I: (1) Marital Problem, (2) Alcohol Abuse.  AXIS II: Personality disorder not otherwise specified with passive aggressive, antisocial, borderline features, EPTE, unsuitable for USN.  Represents continuing danger to himself and others, immediate administrative processing should be initiated immediately. 

940322:	Retention Warning:  Advised of deficiency (Unauthorized absence from 940222-940307 and missed ship’s movement on 940222.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

940513:	Applicant notified of intended recommendation for discharge by reason of misconduct due to the commission of a serious offense and convenience of the government.  The characterization of your service may be Other Than Honorable.

940513:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

940519:	An Administrative Discharge Board.  Applicant’s statement to board “ I think that the discharge would result in the elimination of the hardship or the elimination or the reduction in the hardship”.  “I would not like to stay in the Navy”.  Decision, based upon a preponderance of the evidence and by unanimous vote, the board found that the Applicant had committed a serious offense and does have a personality disorder, that the misconduct warranted separation, and recommended discharge general (under honorable conditions).

940525:	Commanding Officer recommended discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense and convenience of the government due to personality disorder.

940623:	BUPERS directed the Applicant's discharge general (under 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 19940711 general (under 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 all available 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:  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  After a thorough review of Applicant’s case the Board discovered no impropriety or inequity.  When the service of a member of the U.S. Navy has met the standard of acceptable conduct and performance, it is appropriate to characterize that service as honorable.  A general (under 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.  Despite the servicemember’s record of service, certain serious offenses warrant separation from the naval service in order to maintain proper order and discipline.  The Applicant’s service was marred by two nonjudicial punishment (NJP) proceedings.  His first NJP for violation of UCMJ Article 86 (unauthorized absence) and the second resulted from violations of UCMJ Article 86 (unauthorized absence) and Article 87 (missing movement).  There is credible evidence in the record that the Applicant missed ship’s movement, through design, thus violating Article 87 and substantiating the misconduct by commission of a serious offense for which he was separated.  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 short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant contends that his problems in the Navy can be attributed to his "wife’s depression and suicidal tendencies".  While he may feel that his wife’s mental issues were 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 government enjoys a presumption of regularity in the conduct of its affairs.  The Naval Discharge Review Board noted the Applicant received a valid counseling/retention warning prior to his notification of administrative processing.  Generally, such a retention warning prevents an administrative separation from the United States Navy in the absence of continued misconduct.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence that this warning was not violated.  There is no evidence in the record, nor has the Applicant produced any evidence proving he modified his behavior following .  Furthermore, in the Applicant’s case, the NDRB found that the Applicant was represented by competent legal counsel, failed to offer any objection to the separation proceedings, and testified to the administrative discharge board that he no longer desired to remain in the naval service.  Therefore, the Board concluded that the Applicant waived the discharge protection afforded to him by the retention warning.   

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, documentation of community service, and certification of non-involvement with civil authorities.  The Applicant submitted the following documentation; five employer personal references (96-02), Leadership Watertown membership, search and rescue volunteer diver, state director Mauy Thai, medical assistant course completion (w/ honors), and selection to the National Honor Society in Psychology.  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 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 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, through design) 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