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

FOR OFFICIAL USE ONLY

ex-AN, USNR
Docket No. ND06-00455

Applicant’s Request

The application for discharge review was received on 20060208.  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 20061130.  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 Under Other Than Honorable Conditions by reason of misconduct due to commission of a serious offense.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues:

Equity: Post Service accomplishments.

Documents submitted by Applicant

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

Applicant’s DD Form 214  (Service 2)
Character Reference ltr from L_ A_, dtd November 26, 2005
Character Reference ltr from S_ A_, dtd November 27, 2005
Character Reference ltr from S_ A_, dtd November 27, 2005
Character Reference ltr from R_ H_, dtd October 17, 2005
Character Reference dtd November 21, 2005
Character Reference ltr from D_ P_, dtd January 10, 2005
Character Reference ltr from J. K_ P_, undated
Character Reference ltr from M_ B. A_, dtd October 12, 2005
Character Reference ltr from J_ A. H_, dtd November 29, 2005

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge): None.

Period of Service Under Review:

Date of Enlistment:  19941107		Date of Discharge:  19970821

Length of Service (years, months, days):

	Active:    02  08  24  
	Inactive:  00  01  22

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  23

Years Contracted:  8

Education Level:  12				AFQT:  79

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.0 (3) 		Behavior:  1.7 (3) 		OTA:  2.17

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Meritorious Unit Commendation, Navy “E” Ribbon, National Defense Service Medal, Armed Forces Expeditionary Medal, Sea Service Deployment Ribbon.

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MILPERSMAN, Article 3630605.

Chronological Listing of Significant Service Events: 

941229:	Commenced active duty for a period of 36 months. 

961204:	Retention Warning:  Advised of deficiency (Violation of the UCMJ, Article 86, failure to go prescribed to appointed place of duty to wit:  Division quarters at 960711, and Article 91, willful disobedience of the chief petty officer (two specifications).), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

961212:	NJP for violation of UCMJ, Article 86:  Failure to go at the time prescribed to his appointed place of duty on or about 960711.
Violation of UCMJ, Article 91 (2 Specs):  Willful disobedience of a chief petty officer both on 961204.
	Award:  Forfeiture of $509.00 pay per month for 1 month (suspended for 6 months), restriction and extra duty for 30 days.  No indication of appeal in the record.

970313:	NJP for violation of UCMJ, Article 91 (3 Specs):  Willful disobedience of a Petty Officer between 970221 and 970224.
Violation of UCMJ, Article 92:  Lawful general regulations on 970224.
	Award:  Forfeiture of $551.00 pay per month for 1 month, restriction and extra duty for 30 days.  No indication of appeal in the record.

970729:	NJP for violation of UCMJ, Article 92:  Willful dereliction in the performance of duties on 970628.
	Violation of the UCMJ, Article 107 (2 Specs):  False official statement both on 970628.
	Award:  Forfeiture of $505.00 pay per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

970806:	Medical evaluation by M. F. C_, LCDR MC USNR:  History of Present Illness:  D_ A_ (Applicant) was referred from LT W_ because he cut his wrist on 970720.  At that time he stated he did it because he was stressed due to his work and he did not want to die.  The patient states that he absolutely hates the service and wants to get out of the Navy.  He denies feeling depressed.  He does admit to being stressed out, but denies having any sleep or appetite problems.
	AXIS I:  Occupational problems
	AXIS II:  Personality disorder, NOS with Borderline traits
	AXIS III:  None
	Plan:  The patient has a personality disorder which makes him fit for full duty, but unsuitable for further military service.  The patient’s condition is not amendable to further psychiatric treatment.
	2.  Although the patient denies being suicidal or homicidal his behavior of cutting his wrist makes him a t a risk of harm to self or others if retained in service.  Therefore, an expeditious separation is highly recommended.

970812:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to commission of serious offenses as evidenced by your violation of the UCMJ, Article 92, willful dereliction in the performance of duties 970628 and violation of a lawful general regulation on 970224; Article 107 (2 Specs), false official statement both on 970628; Article 91 (3 Specs), willful disobedience of a petty officer between 970221 and 970224 and (2 Specs) willful disobedience of a chief petty officer on 961204, and by reason of convenience of the government on the basis of personality  disorder as evidenced by your psychiatric evaluation of 970806.

970821:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

970912:	Commanding Officer, USS NIMITZ, recommended that the Applicant be discharged under other than honorable conditions by reason of misconduct due to commission of serious offense and by reason of misconduct due to personality disorder as evidenced by his psychiatric evaluation of 970806.  Commanding Officer’s comments:  “SNM’s (Applicant) serious misconduct cannot be tolerated and is detrimental to the good order and discipline of this command and the Navy.  SNM possesses no potential for further Naval Service.  I strongly recommend that SNM be separated from the Naval Service with characterization of service as other than honorable.”

970914:	COMCARGRU SEVEN authorized the Applicant’s discharge under other than honorable conditions by reason of misconduct due to commission of serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19970922 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of under other than 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).

The Applicant did not request a discharge characterization change.  Applicable regulations stipulate that a request for review from an Applicant who does not have an Honorable discharge shall be treated as a request for a change to an Honorable discharge.
 
When a member’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  Characterization of service as under other than honorable conditions 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.  There is irrefutable evidence that the Applicant’s conduct during his time in service was not honorable.  Indeed, the Applicant’s records contain 3 nonjudicial punishment proceedings for violation of UCMJ Article 86 (Unauthorized absence), Article 91 (Willfully disobeying), and Article 92 (Willful dereliction in performance of duties), and Article 107 (False official statement).  Violation of Articles 91, 92, and 107 are serious offenses for which a punitive discharge is authorized under Appendix 12 of the Manual for Courts-Martial (B) and typically warrants a characterization of service as under other than honorable conditions.  The Applicant’s conduct, which forms the primary basis for determining the character of service, falls well below that required for an honorable characterization of service.  An upgrade to honorable would be inappropriate.  Relief denied.

Equity – Post service accomplishments:  The Applicant informs the Board that he has been “work[ing] very hard [and] living upright.”

While 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 service, the Board 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.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  The Applicant submitted nine character references for consideration.  The Applicant’s efforts need to be more encompassing to include evidence of continuing educational pursuits, verifiable employment records, documented community service, and certification of non-involvement with civil authorities.  At this time, there is not sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in the characterization of discharge.  And so, no relief is granted on this basis.

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 post-service accomplishments or any other evidence related to the 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 14, effective 
03 Oct 96 until 971212, Article 3630605, SEPARATION OF ENLISTED PERSONNEL 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 Article Willfully disobeying, Article 92 Willful dereliction in performance of duties, and Article 107 False official statement.

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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