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

FOR OFFICIAL USE ONLY

ex-OSSN, USN
Docket No. ND06-00565

Applicant’s Request

The application for discharge review was received on 20060320.  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 20070110.  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 for discharge shall not change.  The discharge shall remain General (Under Honorable Conditions) by reason of misconduct due to a pattern of misconduct.

PART I - ISSUES AND DOCUMENTATION

Decisional issues:

Propriety:  Improper counsel

Equity:  Family issues

Equity:  Post service 

Documentation

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

Applicant’s DD Form 214 (Member 4)
Letter from Applicant, dtd January 23, 2006 (2 pgs)
Display Transcript, dtd January 9, 2006 (2 pgs)
Excerpts from Service Record (5 pgs)
Excerpts from Medical Record (13 pgs)
Letter from Applicant to General Court-Martial Convening Authority, dtd March 19, 2002 (2 pgs)
Statement from Applicant, dtd February 28, 2002 (3 pgs)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19980114 - 19980316	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19980317		Date of Discharge:  20020402

Length of Service (years, months, days):

	Active:    04  00  14  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  19 

Years Contracted:  4 (4-month extension)

Education Level:  11				AFQT:  78

Highest Rate:  OS3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.0 (1)		Behavior:  1.0 (1) 		OTA:  1.50 

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

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

GENERAL (UNDER HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority:  MILPERSMAN, Article 1910-140 (formerly 3630600).

Chronological Listing of Significant Service Events: 

980924:	Medical evaluation by Naval Hospital Bremerton, WA:
Major adjustment disorder, has been on ship for 3 weeks.  Anxiety about close spaces.  Phobia about cleanliness, won’t eat in galley.
	Assessment: “ 1) Adjustment disorder; 2) Probable clostrophobia
	Recommendation:  Leave behind until mental health can evaluate.  I would process for separation due to adjustment disorder. I forsee this problem getting worse instead of better.  Send to Family Service Center for counseling coping skill.  Mental Health Evaluation on October 5, 98.  Admin Separation from Navy.  Unable to make appointment until October 7, 98.  SNM to leave with ship for San Diego.”

980928:	Consultation Report from HM1 G_, USS FIFE (DD-991): Upon arrival San Diego, per PHONCON with PN2 M_, NMCSE FLT Liaison, no appointment available for routine consult until 7 Oct 98.  Per HM3 P_.  If SNM not danger to himself/others this is routine, ship will medevac if needed.  Suggest making appt @ NMCSD or NAVHOSP Bremerton upon return.  COC notified.

981028:	NJP for violation of UCMJ, Article 86: Failure to go at the time prescribed to her appointed place of duty.
	Violation of UCMJ, Article 92: Derelict in the performance of her assigned duties.
	Award:  Forfeiture of $463.00 pay per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

981028:	Retention Warning:  Advised of deficiency (Violation of UCMJ Article 86 and 92.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

990312:	NJP for violation of UCMJ, Article 92: Failure to obey order or regulation.
	Award:  Restriction and extra duty for 10 days.  No indication of appeal in the record.

990322:	Medical evaluation by Mental Health Clinic, Naval Hospital, Bremerton, WA: Chief complaint is that she (Applicant) cannot wear an OBA mask or have anything in contact with her face.  She has a fear of close spaces, fire, and being smothered. 
	AXIS I: Adjustment D/O with disturbance of conduct and emotions, specific phobia.
	AXIS II: Schizoid Personality Disorder. 
	Recommendation: 1) Service member is not actively suicidal or homicidal and agrees to seek help is she were to become so, 2) Member is competent and responsible for her action and behavior, 3) Member is unable to force herself to don OBA mask and refuses systematic desensitization treatment, and thus may be at risk or harm to herself or others and not a suitable candidate for retention in the Navy, 4) Member is seen in follow up with the MHC in approximately two weeks.

020131:	NJP for violation of UCMJ, Article 86: Absence without leave-failing to go to appointed place of duty.
	Violation of UCMJ, Article 91: Insubordinate conduct toward non-commissioned officer.
Violation of UCMJ, Article 92: Failure to obey order or regulation.
	Award:  Forfeiture of $764.00 pay per month for 1 month, restriction and extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.

020205:	NJP for violation of UCMJ, Article 92: Failure to obey order or regulation.
	Violation of UCMJ, Article 134: Threat communicating.
	Award:  Restriction for 45 days, reduction to E-2.  No indication of appeal in the record.

020209:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct pattern of misconduct and misconduct commission of a serious offense.

020209:	Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to submit a written statement for consideration by the Separation Authority and the right to obtain copies of the documents used to support the basis for the separation.

020301:	Commanding Officer, recommended discharge with a general (under honorable conditions by reason of commission of a serious offense and pattern of misconduct.  Commanding Officer’s comments:  “OSSA C_ (Applicant) has been given numerous opportunities at two separate commands to correct her deficiencies.  She is no longer fit for continued Naval Service due to her pattern of misconduct.  OSSA C_ was awarded CO’s NJP for communicating a threat.  The seriousness of this offense, in conjunction with her pattern of misconduct, indicate that warrants Administrative Separation.  It is recommended that she be separated with a General Discharge Under Honorable Conditions.”

020327:	GCMCA, COMPHIBGRU THREE, directed the Applicant's general (under honorable conditions) discharge by reason of misconduct pattern of misconduct.

	Service Record is missing elements of information.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020402 by reason of misconduct due to a pattern of misconduct (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).  

Propriety - The Applicant contends that the Legal Officer that was assisting her had made derogatory comments about her and provided improper legal counsel.

In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.  The Applicant was properly notified of the Commanding Officer’s intent to administratively discharge her.  She elected to consult with counsel and to submit a written statement for consideration by the Separation Authority.  The record does not contain, and the Applicant did not provide, any evidence of wrongdoing by the Legal Officer or anyone involved in the discharge process.  Relief denied.  

Equity – The Applicant had family issues that impacted her ability to serve.

The Applicant states that her family situation, having to care for her brother and grandmother, caused her to make a decision that was not the “best path to get off the ship.”     While she may feel that her family situation was the underlying cause of her misconduct, the record clearly reflects her willful misconduct and demonstrated she was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for her conduct or that she should not be held accountable for her actions.  Relief denied.

Equity – The Applicant claims that her post service accomplishments include continuing education and employment. In addition, the Applicant claims that she has “grown into a hardworking, responsible adult.”  

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 a retention warning and 4 nonjudicial punishment proceedings for violations of Articles 86 (Unauthorized absence, failure to go, 2 specs), 91 (Insubordinate conduct toward noncommissioned officer) 92 (Failure to obey order, regulation, 2 specs) and 134 (Threat, communicating) of the UCMJ.  Violations of UCMJ Articles 91, 92, and 134 are considered serious offenses for which a punitive discharge is authorized if adjudged by a special or general court martial.  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 and falls far short of that required for an upgrade of her characterization of service.  Relief is not warranted.

Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 any post-service documentation to consider mitigating the misconduct that resulted in the characterization of discharge.  Relief denied.

The Applicant wants to re-enter the military as an Officer.  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

The Applicant wants to receive GI Bill benefits to continue her education.  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  

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), Change 18, effective
12 Dec 1997 until 21 Aug 2002, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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 noncommissioned officer), 92 (Failure to obey order, regulation), and 134 (Threat, communicating).

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