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

FOR OFFICIAL USE ONLY

  ex-AZ3, USN
Docket No. ND05-00944

Applicant’s Request

The application for discharge review was received on 20050509.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and the Narrative Reason for Separation be removed.  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051117.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, an impropriety in the Applicant’s narrative reason for separation was discovered by the NDRB.  The Board’s vote was unanimous that the character for discharge shall remain GENERAL (UNDER HONORABLE CONDITIONS) and the reason for discharge shall change to SECRETARIAL AUTHORITY, authority: MILPERSMAN 1910-164, Separation Code “JFF.”

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I am requesting the status of my discharge be upgraded to Honorable and Personality Disorder be removed from Narrative Reason for Separation.  The dates on Memorandums, counseling and reports of offenses do not match the date of report and in fact those documents were created at a later date after separation was wanted by my superiors to justify a cause.  As well, there was no effort by command to truly get an accurate psychotically evaluation regarding the reasons for my UA.”

Documentation

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

Applicant’s letter, dtd September 15, 2005 (2 pages)
Applicant’s service and medical records (39 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19971115 - 19980720	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19980721		Date of Discharge:  20000929

Length of Service (years, months, days):

	Active:    02  02  09  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:	7 days
	Confinement:			None

Age at Entry:  17 (Parental Consent)

Years Contracted:  4 (12 month extension)

Education Level:  12				AFQT:  67

Highest Rate:  AZ3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.67 (3)			Behavior:  1.67 (3)		OTA:  2.67

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Meritorious Unit Commendation; Humanitarian 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: 

000417:	Medical evaluation by Head, Mental Health Department, Naval Hospital Lemoore.
Axis I:  Dysthymic Disorder, Provisional, Rule Out Major Depressive Disorder, Rule Out Bipolar Disorder, Type Two.  
Axis II:  Schizoid Personality Disorder, Provisional.  Not unfitting for service member at this time.
	Recommendation:  The Applicant is psychiatrically fit for full duty.

000418:	Medical evaluation by Head, Mental Health Department, Naval Hospital Lemoore.
Principal Diagnosis:  Schizoid Personality Disorder, provisional with suitability for service to be determined.  Also Rule Out Major Depressive Disorder.
	Recommendation:  The Applicant is psychiatrically fit for full duty.

000424:	Psychiatric Clinic:
Impression: Axis I:  Dysthymic disorder, provisional.  
Axis II:  Schizoid personality disorder, provisional, not unfitting.  Recommendation:  The Applicant is psychiatrically fit for full duty.  RTC 2 weeks for further psychotherapy.

000502:	Report and Disposition of Offenses:  Applicant was directed to make an appointment to medical to redo his overseas screening.  An appointment was made for him by ADC A_, this was passed to him by his superior AZ1 W_.  P.O. W_ also clarified that he was not to cancel this appointment.  Applicant went ahead and canceled this appointment even after being directed not to.  For this reason I am writing him up for disobeying a lawful order.  
	Action of Executive Officer:  Referred to Captain’s Mast

000508:	Psychiatric Clinic: 
Impression:  Personality Disorder, Not Otherwise Specified, Provisional.  Plan:  Fit for full duty.  RTC 2 weeks.  Continue psychotherapy.

000524:	Psychiatric Clinic:  
Impression:  Major Depressive Disorder.  
Plan: Zoloft 50/Trayodone 25-50.  RTC 1-2 weeks.  Fit for full duty.

000614:	Report and Disposition of Offenses:  Notified by NEX Loss Prevention that Applicant has pass 30 bad checks at their store.  The amount of the checks exceeds 1600 dollars.  
	Action of Executive Officer:  Referred to Captain’s Mast.

000615:	Report and Disposition of Offenses:  Directed member to contact Mr. D_ of Dodd’s Haircutting in Lemoore to take care of a bad check.  Applicant failed to follow this order, as of 15 Jun Applicant had not contacted Mr. D_.
	Action of Executive Officer:  Referred to Captain’s Mast.

000616:	Report Chit:  Disrespect of a Senior Petty Officer.

000705:	Psychiatric Clinic: 
Impression:  Adjustment Disorder Depressed.  R/O Personality Disorder NOS.
Plan:  Not deployable at this time.  Applicant is not motivated for treatment, not endorsing sx that would mandate Rx.  Therefore, would not force treatment upon him as it would be counterproductive.  Monitor Applicant’s reaction to Mast, see again 1 month after restriction for eval of deployability.  Have communicated above to CDR H_, Applicant’s OIC.

000713:	Indebtedness to the Government:  Applicant notified of indebtedness to the government in the amount of $169.06 as a result of the Applicant’s failure to pay for telephone and or television service at the MWR Department, Y-COMM.

000804:	Counseling:  Advised of deficiency (Applicant instructed to provide documentation showing what he has accomplished in making restitution to the Navy Exchange and the Lake View Apartment Complex.), notified of corrective action and assistance available.

000804:	Counseling:  Advised of deficiency (Failed to be in proper uniform for Captain’s Mast on August 4, 2000.), notified of corrective actions and assistance available.

000814:	Report Chit:  Disrespect.

000814:	Counseling:  Advised of deficiency (Failing to pay Y-comm for services rendered.  Failure to show proof of payment.  Talked to H_ at Y-comm on 000814 and 000726.  Left at 1055 and did not return until 1210, Applicant did not check out when he left.), notified of corrective actions and assistance available.

000818:	Report Chit:  U.A.

000821:	Applicant to unauthorized absence at 1045 on 000821.

000829:	Applicant from unauthorized absence at 0930 on 000829 (7 days/surrendered).

Unknown:	Medical evaluation by Mental Health Department, Naval Hospital Lemoore:
Diagnoses:  Personality Disorder NOS and Adjustment Disorder with Mixed Disturbance of Emotions and Conduct.  This individual does manifest a long-standing disorder of character and behavior which is of such severity as to interfere with serving adequately in the Navy.  Processing for administrative separation would require, in addition to these diagnoses, documented interference with the performance of duty and counseling.

000905:	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).

000905:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

000905:	Officer in Charge, Aircraft Intermediate Maintenance Detachment, Lemoore, recommended discharge with a general (under honorable conditions) by reason of convenience of the government - personality disorder.  Officer in Charge’s comments:  “Service member’s medical condition warrants separation due to his reluctance to conform to military standards.  Service member has continuously refused command services to improve performance, and repetitive counseling and direct supervision motivates service member’s disruptive behavior.  Recommend member’s discharge be characterized as General Under Honorable Conditions.”

000908:	Commander, Strike Fighter Wing, U.S. Pacific Fleet directed the Applicant's discharge with a general (under honorable conditions) by reason of misconduct - convenience of the government - personality disorder.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000929 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 available records, supporting documents, facts, and circumstances unique to this case, the Board found that the narrative reason for separation was improper, but the discharge characterization was equitable (B and C).  The Board presumed regularity in the conduct of governmental affairs (D).

A review of the Applicant’s records indicate that he was evaluated by Navy mental health on numerous occasions between April and September 2000.  During these sessions, the Applicant was diagnosed, by qualified medical officer, as possessing a long-standing disorder of character and behavior of such severity as to interfere with serving adequately in the Navy.  There is no documentation suggesting that he was considered a continuing risk to do harm to himself or others.  In fact, the Applicant’s medical records indicate that processing for administrative separation would require documented interference with the performance of duty and counseling.  On 20000905, the Applicant was notified of intended recommendation for separation by reason of convenience of the government – personality disorder.  The Officer in Charge, Aircraft Intermediate Maintenance Detachment, Lemoore, recommended the Applicant’s discharge with a general (under honorable conditions).  In his recommendation letter, the Officer in Charge indicated that the Applicant was not issued a NAVPERS 1070/613 Counseling/Retention warning.

The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted.  Applicable regulations require the issuance and violation of a NAVPERS 1070/613 Counseling/ Retention warning prior to the initiation of administrative separation processing for convenience of the government – personality disorder.  The only exception to this rule is if the Applicant is diagnosed as a continuing risk of harm to self or others.  In such an instance, the requirement for a retention warning is waived, and the Navy has the authority to expeditiously separate the servicemember.  However, in the Applicant’s case, there never was a diagnosis of a continuing risk of harm to self or others.  The lack of this diagnosis requires that the government issue a retention warning prior to initiation of separation processing to permit the Applicant an opportunity to overcome his deficiencies.  The evidence of record indicates this requirement was not met.  Therefore, the NDRB concluded unanimously that the Applicant’s separation processing was not in strict accordance with applicable regulations.  The lack of a retention warning prior to the commencement of processing constitutes an impropriety in the Applicant’s discharge.  As such, the NDRB voted to change the Narrative Reason for Separation to Secretarial Authority.  Relief granted.

The Applicant implies that his counselings and reports of offenses were generated at a later date to justify his separation.  There is a presumption of regularity in the conduct of governmental 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 his 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 he was the victim of a conspiracy to wrongfully discharge him.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  Relief denied.

The Applicant contends his discharge should be honorable.  Under applicable regulations, separations based on a personality disorder should be honorable unless a general (under honorable conditions) or an entry-level separation is warranted.  A general discharge may be warranted if the Applicant’s service contains records of nonjudicial punishments, disciplinary actions, or if other significant negative aspects existed, which outweighed the positive aspects of the member’s period of service.  Additionally, a general discharge may be warranted if the Applicant’s performance evaluation averages are not sufficient to merit an honorable discharge.  The Applicant’s record contains no evidence of NJP and his performance evaluations were sufficient to merit an honorable discharge.  However, the evidence of record included documented instances of unauthorized absence, disrespect, failure to pay just debts, and poor military bearing.  In light of this evidence, the NDRB unanimously concluded that the Applicant’s discharge characterization of general (under honorable conditions) was proper and equitable.  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.  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 27, effective 
27 March 2000 until 13 Aug 2001, Article 1910-122 (formerly 3620225), Separation By Reason of Convenience of the Government - Personality Disorder.

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, 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