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

FOR OFFICIAL USE ONLY

  ex-AR, USN
Docket No. ND05-01552

Applicant’s Request

The application for discharge review was received on 20050920.  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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060629.  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) 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:

“As you can see from my discharge papers, I, was discharged for a personality disorder with the following conditions (Antisocial), (Borderline), (Immature), and (Passive-aggressive features).  I am not going to disprove some of these accusations and, I’m going to prove that some was also exaggerated resulting in an idea that I was not able to conform with standard set by the U. S. Navy.  You can see from the police report my sister was physically violent but, it doesn’t tell you of how she was prone to violent burst of anger over the last decade and, no police report exist because, my father was trying to protect her however, my mother will conform her behavior.

Also the college papers show that I had enough college credits for an E-3 however, because I went to nuke school my recruiters decided that I wouldn’t need it and, another page shows that after not passing I, was demoted for academic.  Despite what some people would want you to believe I did not fail test at AV school because, I wanted to be a Nuke.  I received 100 on two of the first three test but, after and the other was over 80.  When my grades started to slip it was because, I had developed a bad fever and, was put on S.I.Q. over a weekend when I failed to recover I went back to medical for more testing on Monday, despite being sick I was told over the phone that I would not be given a medical appointment on Tuesday, Wednesday and, Thursday or even he allowed to see a corp men and, I was forced to go to P.T. and, class despite having a fever that was so high I couldn’t sleep and, was accused of trying to fail my current “A” school when I had problems keeping up with the workload despite having received 100’s on the first two test.  On Friday I was finally allowed to see a doctor even though I had given up on an appointment because, some of the test medical did on Monday suggested that I had a flu and, struck throat and, I almost failed a test because, of suffering from both of these illnesses because, I was decide medical attention.

Although I failed to develop any close friendships I would like to point out that I was 23 while most of the other people in my class and at the barracks were about 18 and, have very little in common with 23 year olds.  However there were older people in the classes but, I seldom was able to socialize with them because, almost all of them had wives and, chose to stay with them verses staying at the barracks.  I also had many friends before the navy which I am still friends with and, when one of them started to withdraw himself I, realized that he was suffering from depressing and, tried to talk to him about what was bothering him and, over time he stopped avoiding us and, began to talk to us again.

I never expected any sympathy from any of my superiors the reason for my constant visits to the Chaplin and, a councilors were because, of the lack of people to talk because, most of the people seemed to enjoy drinking, which was unfortunate because, I don’t drink.  A senior chief once suggested staying at the barracks and, playing D & D but I felt stupid withdrawing into a fictional existence whether it is created from alcohol or, a game.  When talking to a Chaplin or a councilors wasn’t enough I would read a book.  When I, ran out of books to read a started reviewing the Japanese I studied in college which was unfortunate because, many of the people in the barracks seemed to think it was taboo to waste my time studying something I didn’t have to versus getting drunk or, playing a game and, were even started calling me obscenities (one even went far enough as to watch for my car on base and, would tell everyone in my class when my car did or, didn’t change parking spaces on a weekend).  The result was that I withdrew into studying Japanese even further and, it started to affect my performance at school.

I can’t imagine what provoked the Lieutenant to say that I’m Immature even though I was prone to getting in to trouble it was ten months after being in the navy and, even when I did something wrong I’d, say that I, was responsible but, I did get into a fight with two shipmates after one of them who was in charge of enforcing the barrack rules heard a porno that was on to loud and, saw that the door to my room was dead bolted open by my roommates (dead bolting a door open was not allowed a week before due to a sailor that was beaten by some marines after doing the same thing) decided that he should walk in the door and, watch porno with my roommates but, after seeing me minding my own trying to concentrate on my computer decided that I should spend my time watching porn instead and, begin to fold the screen down after punching him to get him away he shouted that I had a problem for refusing to let him take control of my computer even though it wasn’t his room or, his computer I, did become so angry that I begin attacking him and, someone else that tried to brake up and, then stop me from reporting it.  However I also admitted to having a temper problem and, went to an anger management class that was my decision.

I am not going to deny that I gave the finger to a petty officer however six weeks before this happened I was accused of being absent to a duty muster, I admitted to being absent but, I Also told that my instructor from school asked that I, be excused after failing two test and, being told that I had to go to a help session after class that would make it difficult for me to go to the first duty muster on time and, the absence was dropped.  However the next week on my duty day I was accused of the same thing I brought up what happened last week and, the absence was dropped this occurred for four more weeks and, I began to lose confidence in my superiors until one day after that last a petty officer got in my face at the school house while I was telling my class leader why my lab-partner was missing and, accused reminded me not to talk in ranks after, I stopped me he turned away but, got in my face again and, accused me of talking back I didn’t say anything before or, after and, he turned around again after my shipmates came to my defense.  I had become disgusted with having argued with my superiors for six months and, wasn’t thinking clearly.  I admit to flipping off a petty officer.  I had also become disgusted with wearing the same uniform as the sailor that was caught with his hand in a tip jar at a local bar, the sailor that accused me of not having permission to be absent from the first duty muster six weeks in a row, the sailors that tried to attack another shipmate by burning the door to his room down and, the petty officer that was hearing voices in his head.

When I was at mast for giving the finger to a petty officer, I told the caption that I was afraid I would be killed in the fleet.  After a petty officer telling me that people like me disappear from ships for no reason and, another petty officer decided not to file weapons’ charges after I demanded a finger print test be done on a weapon he found in my room to prove it was not mine and, belongs to the roommate who made derogatory comments to a female Latino petty officer and, was still allowed to leave base without mast I believe I was right.

I would also like you to keep in mind that all my friends are hard-working college students that believe the navy is protecting petty thieves and, hustlers in the United States which is extremely bad at a time when the military is trying to improve its image and, that I wasn’t in any trouble such as the above before or, after the navy.”

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Incident report, dtd September 14, 2000
DeAnza College academic transcript (2 pages)
Three pages from Applicant’s service record
Applicant’s DD Form 214 (Member 1)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20021029 - 20030414	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20030415		Date of Discharge:  20040624

Length of Service (years, months, days):

	Active:    01  02  10
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  21

Years Contracted:  4 (24 month extension)

Education Level:  14				AFQT:  84

Highest Rate:  FN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: NA*				Behavior:  2.0 (1)	OTA:  2.00

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

* Not Available

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

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

Chronological Listing of Significant Service Events: 

021030:	Pre-service waiver for Nuclear Field required academics granted.

031030:	Academic drop from Nuclear Power Training School. [Date estimated from history of assignments.]

040218:	NJP for violation of UCMJ, Article 128 (2 specs):
	Specification 1: On 27 January 2004, Airman Recruit (AR) K_(Applicant) assaulted another service member by hitting him on the side of his head with his fist.
	Specification 2: On 27 January 2004, Airman Recruit K_(Applicant) assaulted another service member by grabbing him by the throat until he could not breath. [Details extracted from Commanding Officer’s letter dated 040625.]
	Date of Offense:  27Jan04
	Award:  Forfeiture of $596 per month for 1 month.  Punishment suspended for 6 months.  No indication of appeal in the record.

040218:	Retention Warning:  Advised of deficiency (CO’s nonjudicial punishment on 18 Feb 03 for VUCMJ Art 128, Assault (2 specification).), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

040426:	Medical evaluation at Mental Health Department, NATTC Branch Medical Clinic Pensacola, FL by G. F. O_, LT, MSC, USNR, Staff Psychologist.
	Psychological consultation report.
	AXIS I: Occupational problem.
	AXIS II: Personality disorder not otherwise specified with antisocial, borderline, immature and passive-aggressive features.
	AXIS III: None.
	AXIS IV: Routine military stressors, legal hold, loss of school, poor social support.
	AXIS V:  GAF = 45-50 (current)
	Plan/Recommendations:
	Recommend routine administrative separation based on unsuitability.
	Patient is recommended for FFSC individual counseling to be scheduled by patient.

040513:	Forfeiture of pay awarded at NJP on 040218 vacated due to continued misconduct.

040513:	NJP for violation of UCMJ, Article 91: (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer.
	Specification:  Insubordinate conduct – On 22 April 2004, was disrespectful in deportment toward a Second Class Petty Officer, by shooting him the middle finger.  [Details extracted from Commanding Officer’s letter dated 040625.]
	Date of offense:  04Apr22
	Award:  Forfeiture of $596 per month for 2 months, correctional custody unit for 30 days.  No indication of appeal in the record.  EAOS changed to 07Apr14.

040513:	Confinement physical.  Physically fit for CCU.

040514:	Medical evaluation by Naval Brig/Correctional Custody, Naval Air Station, Pensacola, FL
	Assessment: Member interviewed answers questions sarcastically, however in “good spirits” and states I probably need to speak to a Mental Health professional, will refer to Brig Pshyc.  Pt also presents with Tinea Capithoriz/dandruff.  Rx for Selsun Lotion given.
	Addendum:  After reviewing HR found pt was eval’d by Dr. O_ Clinical Physiologist on 26Apr04 will consult with Dr. O_ prior to referral to Psychiatry.
	Spoke to Lt O_, Mental Health at NTTC.  She will come to the Brig to eval this pt on Tues 18May04 at 1300.

040518:	Medical evaluation at Naval Hospital Pensacola, FL by G. F. O_, LT, MSC, USNR, Staff Psychologist.
	AXIS I: Occupational problem.
	AXIS II: Personality disorder not otherwise specified with antisocial, borderline, immature and passive-aggressive features.
	AXIS III: None.
	AXIS IV: Routine military stressors, legal hold, loss of school, poor social support.
	Plan:  Recommend administrative separation for unsuitability and malingering.
	Follow up with Dr. O_ on Thursday, 27 May 04 for administrative separation monitoring group.

040614:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of convenience of the government - personality disorder, misconduct - pattern of misconduct, and misconduct - commission of serious offense.

040614:	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.

040621:	Applicant did not show for his scheduled separation physical.

040625:	Commanding Officer, Naval Air Technical Training Center directed discharge with type warranted by service record by reason of misconduct.  Commanding Officer’s comments:  “Airman Recruit K_(Applicant) received nonjudicial punishment on two separate occasions for assault upon other service member’s and insubordinate conduct toward a Second Class Petty Officer.  He was also diagnosed by medical authorities as having a personality disorder, not otherwise specified, with antisocial, borderline, immature, and passive-aggressive features and malingering.  In my opinion, he has no potential for future useful naval service; therefore, I have directed that he be separated from the naval service with the type of discharge warranted by service record by reason of misconduct.”

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040624 by reason of misconduct due to commission of a serious offense (A and B) 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 (C and D).  

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 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 one retention warning, two nonjudicial punishment proceedings for violations of Articles 91 and 128 (2 specs) of the UCMJ. Violations of Articles 91 and 128 of the UCMJ are considered serious offenses. 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 problems in the Navy can be attributed to his family situation and feelings of isolation. The Applicant states he feared for his life because of prejudice against him. While he may feel that his isolation 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 separation process was in strict compliance with the Naval Military Personnel Manual.  In accordance with regulation, when separation processing is warranted for any reason in addition to personality disorder (convenience of the government), dual or multiple processing is required.  The Applicant was multiple processed for separation by reason of misconduct due to the commission of a serious offense, misconduct due to a pattern of misconduct, and convenience of the government due to a diagnosed personality disorder.  The Applicant’s misconduct, warranting separation for misconduct due to a pattern of misconduct and the commission of a serious offense, is clearly documented in the service record by nonjudicial punishment for violations of Articles 91 and 128 (2 specs) of the UCMJ. The separation authority determined that misconduct due to commission of a serious offense most clearly described the reason for discharge.  Relief is not warranted.

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 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.  Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 02 until 25 April 2005, 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 91 – insubordinate conduct toward a petty officer, and Article 128 - assault.

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.

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