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

FOR OFFICIAL USE ONLY

 ex-ENS, USNR
Docket No. ND05-01020

Applicant’s Request

The application for discharge review was received on 20050601.  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 did not designate a representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation by the Disabled American Veterans.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060316.  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 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 and/or attached document/letter: 

“I attended the University of Mississippi for 5 years, 1996-2001, earned a degree in general engineering, and was commissioned as a naval officer.  During my five years at Ole Miss, I was very active in the NROTC program.  I did two summer tours, one on the USS Enterprise and one on the USS Eisenhower.  I received high evaluations for both tours.  All the effort and time I put into the NROTC program was in addition to my academic studies.  As evidence of my success, I received a degree and a commission.  My goal was to have a career in the Navy and do all that I could to serve and protect my country.

After graduating and receiving my commission into the Navy in May 2001, I was assigned to Pensacola Naval Air Station.  In January 2002, I was reassigned to the Kitty Hawk.  After a few weeks on the Kitty Hawk, I became very discouraged and stressed.  I felt that my life was wasting away in front of my eyes.  I became very depressed which led to my becoming both belligerent and demanding.  I was evaluated on the ship and later sent to Okinawa for further evaluation.  Later the decision was made that I should be separated from the Navy.  I needed psychological treatment.  I am confident that with intervention and appropriate treatment that my life could have been turned around and I could have been a successful naval officer.

After being separated from the Navy, I returned home on October 1, 2002.  I was in such a distraught state of mind that twenty-three days later my parents had to have me committed to a mental institution.  After being discharged from the hospital in January, I enrolled at Mississippi State for a class in aerospace in which I made a B.  In June, I again had to be committed, first to North Mississippi Behavioral Center then to a state hospital.  The VA ruled me 30% service related disabled.

Although I am receiving psychiatric care and medication, I am back in school working toward a degree in physics.  My desire still is to have a successful career that will in some way benefit and serve my country.  Under the advisement of my VA vocational counselor, I am seeking to have my discharge changed from general to honorable in order to realize my career goals.  I feel that with all the effort and time I put into the NROTC program, my receiving an engineering degree, and my continued effort toward further education to gain desirable employment that my request should be granted.  In addition, I feel that all the turmoil that I have experience over the past three years as a result of my service related disability and the fact that I keep trying to move forward speaks for my determination to become a successful and contributing citizen.  I feel that my chances for employment would be much improved if I had an honorable discharge rather than a general discharge.  To me a general discharge is like a cloud of embarrassment and shame hanging over my head.  I ask you to please consider my request and act positively for a change in my discharge from that of general to honorable.”

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 all of evidence assembled for review, we continue to note the contention of the appellant in the request for a discharge upgrade of the current General Under Honorable Conditions discharge to Honorable.

The FSM served on active service from May 2001 to October 2002 at which time he was discharged due to commission of a serious military offense.

The FSM makes contentions on application that he seeks equitable relief from the current discharge status.  He maintains that is actions since discharge reflect his change in character as he furthers his education to gain desirable employment, to move forward and be a positive contributory force in society.

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.

Respectfully, 

K_ L. G_
National Service Officer”

Documentation

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

Certificate of commission as Ensign, United States Navy, dtd May 25, 2001
Letter from East Mississippi State Hospital, dtd April 13, 2005
Letter from North Mississippi State Hospital, dtd May 11, 2005 (2 pages)
Letter from Department of Veterans Affairs, dtd January 9, 2004

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR	19970620 - 20010511	HON
	Active:    None

Period of Service Under Review:

Date of Commission:  20010525		Date of Discharge:  20021001

Length of Service (years, months, days):

	Active:    01  04  07  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:	1 day
	Confinement:			None

Age at Commission:  22

Years Contracted:  8

Education Level:  16				Degree:  Bachelor of Engineering

Highest Rank:  ENS

Final Officer’s Fitness Report Averages: Officer’s fitness reports were available to the Board for review.

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  SECNAVINST 1920.6B.

Chronological Listing of Significant Service Events: 

010525:	Applicant commissioned as an Ensign in the United States Navy Reserve.

020402:	Applicant to unauthorized absence at 2300 on 020402.

020404:	Applicant from unauthorized absence at 0730 on 020404 (1 day).

020421:	NJP for violation of UCMJ, Article 86:
Specification:  In that ENS P_ L. P_(Applicant), USN, USS KITTY HAWK (CV 63), on active duty, did, on board USS KITTY HAWK (CV 63), on or about 2300, 2 April 2002, without authority, go from his appointed place of duty, to wit: USS KITTY HAWK (CV 63), and remained absent until 0730, 4 April 2002.
Violation of UCMJ, Article 89: Disrespect toward a commission officer.
Specification:  In that ENS P_ L. P_(Applicant), USN, USS KITTY HAWK (CV 63), on active duty, on or about 20 April 2002, behave himself with disrespect toward LCDR B_ J_, USN, and LCDR K_ R. R_, his superior commissioned officers, by using language denunciatory in nature toward the said LCDR B_ J_, USN, and LCDR K_ R. R_, and by becoming belligerent in the Combat Systems office.
Violation of UCMJ, Article 133: Conduct unbecoming an officer and gentleman.
Specification:  In that ENS P_ L. P_(Applicant), USN, USS KITTY HAWK (CV 63), on active duty, did, on board USS KITTY HAW (CV 63), on or about 20 April 2002, engage in conduct unbecoming an officer and gentleman by referring to one of his subordinates, FC2 J_ A_ B_, USN, as a “fucking yahoo” or words to that effect.
	Award:  Written reprimand, restriction for 14 days.  Not appealed on 020428.

020422:	Punitive letter of reprimand.

020518:	Applicant does not intend to submit a statement regarding punitive letter of 020422.

020521:	Commanding Officer, USS KITTY HAWK (CV 63) continues to recommend Applicant be detached from USS KITTY HAWK (CV-64) and required to show cause for retention.

020604:	Commander, Carrier Group FIVE concurs with Commanding Officer’s recommendations to immediately detach Applicant from USS KITTY HAWK and require Applicant to show cause for retention.

020918:	Chief of Naval Personnel recommended to Assistant Secretary of the Navy (Manpower and Reserve Affairs), Applicant’s discharge with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense.

020920:	Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved recommendation for discharge with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20021001 by reason of misconduct due to commission of a serious offense (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).  

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 an officer of the United States Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  A general (under 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 an unauthorized absence, disrespect towards superior commissioned officers, and conduct unbecoming an officer and gentleman of the United States Navy.  This misconduct resulted in nonjudicial punishment proceedings for violations of UCMJ Articles 86, 89, and 133.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the expectations and requirements of his commission as a United States Naval Officer.  Such conduct falls far short of that expected of an officer of the U.S. military and does not meet the requirements for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant implies that his discharge should be upgraded because he was suffering from a mental condition while on active duty.  A mental condition will not automatically excuse a servicemember from legal liability for his misconduct.  Although the Applicant has submitted evidence demonstrating his psychiatric difficulties since discharge, the Applicant’s record contains no evidence of any psychiatric evaluation having been conducted on him while on active duty.  As such, the Board presumed the Applicant possessed substantial capacity to appreciate the wrongfulness of his conduct and was able to conform his conduct to the requirements of the law.  Based upon that presumption, the Board concluded that any mental condition the Applicant may have been suffering from while on active duty, was not of such a nature to relieve him from responsibility for his misconduct.  By unanimous vote, the Board found the discharge proper and equitable as issued.  Relief denied.

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.  As of this time, the Applicant has not provided sufficient post-service documentation for the Board to consider.  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 any additional documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A  Secretary of the Navy Instruction 1920.6B (ADMINISTRATIVE SEPARATION OF OFFICERS), effective 13 December 1999 until Present establishes policies, standards and procedures for the administrative separation of Navy and Marine Corps officers from the naval service in accordance with Title 10, United States Code and DoD Directive 1332.30 of 14 March 1997.

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.

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