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

FOR OFFICIAL USE ONLY

   ex-CTA3, USN
Docket No. ND05-00826

Applicant’s Request

The application for discharge review was received on 20050413.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant designated Disabled American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050915.  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 and reason for discharge shall not change.  The discharge shall remain General (Under Honorable Conditions) by reason of convenience of the government on the basis of a diagnosed personality disorder.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application and attached document/letter:

“My discharge was unfair due to the fact that I was severely reprimanded for one isolated incident in my active duty period of 42 months but was also punished because of a mental health problem that I was suffering from that was caused by and aggravated by circumstances of military service but that also never once affected my job performance.  To explain: I graduated High School at the age of 16 and then entered college and was close to my degree but was intrigued by the military and so I enlisted in the Navy in June 2000.  I had no history of any Mental Health problems before or at the time of enlistment.  Shortly afterward reporting to my command and settling in, I was raped on a regular basis by a Senior Person and was threatened with bodily harm if I were to ever disclose the intimate details.  I was scared and in constant mental and physical pain.  I was unaware of how the military worked with such issues at the time but from what I understood, no one would believe they and me would take his word over mine.  My thoughts were confirmed when I went to the Family Services Center and was given the run around.  I thought at that time that things would get better when he transferred since no one outside the command was giving me any help and I was much to afraid to turn him in. Unfortunately he re-toured at the command.  It became extremely uncomfortable for me to an unbearable point and continued to happen until as attractive girl transferred to our command and he left me alone.  The rapes happened for a period of over a year.  It traumatized me and I went to the Family Service Center again to seek help thinking that they might help without being too involved with who and the where.  They did for the most part.  Eventually they referred me to the Mental Health Clinic on 32nd St. Naval Station, San Diego for more help.  Their diagnosis was that I suffered from anorexia nervosa, bipolar disorder, stress disorder and possibly a split personality.  I never told my counselor about the rape but I believe that stress added to my “personality problems.  I was eventually discharged for Personality Disorder with the characterization being General, Under Honorable Conditions.  There were no previous problems with tardiness, disciplinary problems or any of the like before the diagnosis.  Nor were there any after the diagnosis. I was a model Sailor and my evaluations will show that.  The problem comes when I was wrongly accused of falsifying a price tag at the Naval Exchange around October of 2003.  At the time I was the Command Legal Clerk and had been for almost 2 years.  The command made me sign papers that were not pertinent to the case nor were they morally correct but I signed them under duress as the Command members knew that I was on the way to the doctor’s office (Mental Health Clinic) for my counseling and had no time to read it thoroughly but I signed it not knowing that there was a supposed “confession” in there.  I signed with blind faith in the justice system of both the Command and the Navy as a whole.  I was extremely disappointed in the actions of my fellow command members and superiors.    The alleged falsification of the tags at the Exchange happened on October 12, 2003, the following Monday, the doctor informed me that he though it was wise and that I would be better off out of the Navy and to reenter into the civilian world and far away from the military environment.  At the time I agreed and wanted that more than anything but stood by my commitment to finish my obligated time of service and wanted to finish my tour which at the time was only a little over 8 months.  On November 12, 2003, the doctor gave me papers to give to my XO and CO stating that I was to be processed out ASAP (on the paper it stated within-and no longer than-12 days) due to the way my condition was worsening and I was unable to function in my daily tasks but the work was always getting done and I was never late or had any disciplinary problems. The Command held that paperwork knowing what it said and completely disregarding my wellbeing and the recommendations of the doctors for almost 6 weeks till they had come up with a story for my Mast.  It turned out that the case went all the way to Captain’s Mast.  The only evidence they had was a tape proving that I paid for it and that I did not steal it (which was their first allegation).  As punishment for this alleged crime, I received a reduction in rate to E4, half month’s pay for 2 months, my security clearance suspended, and 30 days extra duty.  I can accept that punishment even though all I did wrong was fail to read the supposed case file that the Command had done up. I can accept that.  I did not admit to doing anything wrong nor do I feel I should be punished for something that I never did wrong.  But what I don’t understand more than that is why I was discharged in addition to the punishment stated above.  
The CO announced my discharge at my Mast which was inappropriate and embarrassing to begin with.  His wording exactly during my Mast in front of many of my peers was “Your punishment is handed down as followed: Reduction in rate to E4, half months pay for 2 months, 30 days extra duty, and your clearance will remain suspended.  This is a separate subject, but in your mental health case you are going to be discharged characterized as General, Under Honorable Conditions and processed out immediately.” It was not only inappropriate and embarrassing to put out my personal business of being processed out for psychiatric problems but a violation of privacy acts.  I should not be subject to such things in front of my peers by my superiors.  Also, basing my discharge on the mental health problems I was having at the time had nothing to do with the reason why I was at Mast.  Therefore they should not have been brought up even in the same conversation or in a public place for it to be broadcast to the entire command.  My entire time on active duty was stellar.  I had more than a few collateral duties that I was responsible for and performed superbly without any help from any of my peers or superiors.  I was always getting praised and complimented on a job well done.  Therefore there was not reason or basis why I should have been discharged under that characterization.  My naval service should have been classified as Honorable.  Anyone would have told you what a dedicated, hard working, respectable person I was the entire time they knew me while I was in the Navy.  Therefore I request that based on these reasons alone that I should have my discharge reviewed and upgraded.”

Additional issues submitted by Applicant’s counsel/representative (Disabled American Veterans):

“Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and of all evidence assembled for review, we continue to note the contention of the appellant in her request for a discharge upgrade of the current General Under Honorable Condition discharge to that of Honorable.

The FSM served on active service from June 27, 2000 to December 31, 2003 at which time she was discharged by reason of a Personality Disorder.

The FSM contends the current discharge is improper because she was punished for one isolated incident of falsifying a price tag at the Navy Exchange, of which the only proof was a video of the FSM paying for the item, nothing of which reflected she changed the price. At the time of the Captain’s Mast her discharge regarding the Personality Disorder was also brought forward shared with her peers and made part of the Mast in violation of the Privacy Act.

This creates a need for a review of the application of the standard, for the Board to determine that the applicant’s discharge was improper. The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted. See, SECNAVIST 5420.174 D, Sect. 407, part 3.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174D.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the applicant.”

Documentation

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

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20000606 – 20000626		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20000627		Date of Discharge:  20031231

Length of Service (years, months, days):

	Active:    03  06  04  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:	None
	Confinement:			None

Age at Entry:  18 

Years Contracted:  4 

Education Level:  12			AFQT:  68

Highest Rate:  CTA2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.60 (5) 		Behavior:  3.00 (5) 	OTA:  3.34 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Good Conduct Medal, National Defense Service Medal.

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

GENERAL (UNDER HONORABLE CONDITIONS)/PERSONALITY DISORDER, authority:  MILPERSMAN, Article 1910-122 (formerly 3620225).

Chronological Listing of Significant Service Events: 

031112:	Medical evaluation by Fleet Mental Health Unit Naval Station, San Diego:
Diagnostic Impression:
Axis I: Panic Disorder Without Agoraphobia
Axis II: Borderline Personality Disorder
Axis III: Endometriosis, Laporoscopy (May 2003)
Axis IV: Problem with primary support, family or origin issues
Axis V: 60 current, 70 past year
Pain: Some abdominal pain 
The member is not considered to be mentally ill, (no medically boardable condition), but manifest a longstanding disorder of character and behavior which is of such severity as to render this individual unsuitable for continued military service in the U.S. Navy.  She does not presently require, and will not benefit from hospitalization.  Short term psychiatric treatment for this condition is of limited benefit, and long term treatment is not available within the military.  Although not currently suicidal or homicidal, this member is judged to represent a high risk of harm to self or others if retained on active duty.  She is deemed fit to return to duty for immediate processing for administrative separation, which should be handled EXPEDITIOUSLY.  It is also recommended that she not have access to any weapon, not operate government vehicles, or work with classified materials.  The patient should be placed in a non-deployable status while awaiting separation.

031211:	NJP for violation of UCMJ, Article 123:  Forgery.
Award:  Forfeiture of $908 per month for 1 month, reduction to E-4.  No indication of appeal in the record.

031211:	Applicant notified of intended recommendation for discharge by reason of convenience of the government personality disorder. Applicant notified that the least favorable characterization of service possible is general (under honorable conditions).

031211:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

031216:	Commanding Officer, Naval Security Group Activity, San Diego, directed the Applicant's discharge with a general (under honorable conditions) by reason of convenience of the government personality disorder.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20031231 by reason of convenience of the government on the basis of a diagnosed personality disorder (A) with a service characterization of general (under honorable conditions).  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 (B and C).  The Board presumed regularity in the conduct of governmental affairs (D).

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.  A general discharge is warranted for behavior not sufficiently meritorious to warrant an honorable discharge.  The Applicant’s service was marred by nonjudicial punishment proceedings for a violation of Article 123 of the UCMJ for forgery.  The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her 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 her characterization of service.  Relief is not warranted.

The Applicant contends that her personality disorder was aggravated by repeated rapes at the hands of an unidentified superior at her command.  The Applicant further contends that, despite her status as Command Legal Clerk, she was duped into signing a confession for misconduct she did not commit.  The government enjoys a presumption of regularity in the conduct of its affairs.  This presumption permits the Board to presume that the government’s agents acted in good faith, proceeded within the bounds of the law, and conformed their behavior to appropriate standards during the Applicant’s Naval service and subsequent administrative processing.  The Applicant bears the burden of establishing her issues 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 she was the victim of rape.  Likewise, there is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that any member of her command wrongfully coerced her into confessing to misconduct during her administrative separation processing.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  Relief denied.

The Applicant contends that her rights under the Privacy Act were violated.  The following is provided for the edification of the Applicant.  The NDRB has no jurisdiction to provide relief for possible violations of the Privacy Act.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  The Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning relief in this matter.

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 2002 until Present, Article 1910-122 (formerly 3620225), Separation By Reason of Convenience of the Government - Personality Disorder(s).

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

D.   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.

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