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

FOR OFFICIAL USE ONLY

ex-AA, USN
Docket No. ND06-00567

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 20070125.  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 characterization 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:

No issues were submitted by the Applicant.

Documentation

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

Letter from Applicant, undated
Applicant’s DD Form 214 (Member 4)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20021106 - 20030623	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20030624		Date of Discharge:  20040816

Length of Service (years, months, days):

	Active:    01  01  23  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  17 (Parental Consent)

Years Contracted:  4 

Education Level:  12				AFQT:  35

Highest Rate:  AA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  1.5 (2) 	Behavior:  1.0 (2)		OTA:  1.59

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

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

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

Chronological Listing of Significant Service Events: 

040615:	NJP for violation of UCMJ, Article 114: Dueling, failure to report a duel.
Award:  Forfeiture of $621.00 pay per month for 1 month, restriction and extra duty for 20 days.  No indication of appeal in the record.

040615:	Retention Warning:  Advised of deficiency (VUMCJ, Art 114-Dueling-failure to report duel), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

040731:	Medical evaluation by Ship Psychologist, USS KITTY HAWK (CV-63):
Applicant was evaluated emergently on the USS KITTY HAWK (CV-63) by Lt T_ S_ after he made a suicide attempt on 040730.  This was the members second Psychological evaluation onboard the Kitty Hawk.  He referred himself for an evaluation on 30 April 04 because of complaints of PTSD.  The member was found to have no mental illness and was suspected to be searching for means to get out of the Navy.  The recent evaluation revealed no mental illness, including no evidence of a personality disorder.  The member was diagnosed as Malingering (V65.2).
Diagnosis:
	AXIS I: V65.2 Malingering
	AXIS II: No diagnosis, Narcissistic and Antisocial traits
	AXIS III: None
	The service member is deemed unsuitable for continued military service on the basis of the above diagnosis.  Although Malingering is not a mental illness and the member had no desire to die, he carried an unacceptably high risk of accidental death secondary to repeated attempts to harm himself to get out of the Navy.  This service member is considered potentially dangerous to himself.  The service member is not interested in clinical treatment and is currently being monitored on the Medical Ward under a suicide watch.
	Recommendation: 
	Process him for expeditious administrative separation per applicable serve directive.  Prognosis for improvement or adapting to the Navy’s is extremely poor. 

040801:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct commission of a serious offense.

040801:	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.

040801:	Commanding Officer, recommended discharge under other than honorable conditions by reason of misconduct commission of a serious offense.  Commanding Officer’s comments:  “He has committed two serious violations of the Uniform Code of Military Justice in the last ten weeks, and has clearly demonstrated his desire to continue his misconduct.  Airman Apprentice G_ (Applicant) therefore had my strongest recommendation for discharge under Other than Honorable conditions by reason of Misconduct-Commission of a Serious Offense with a reenlistment code of RE-4.”

040802:	GCMCA, Commander, Carrier Group FIVE, directed the Applicant's under other than honorable conditions discharge by reason of misconduct commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040816 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 Board presumed regularity in the conduct of governmental affairs (E).

The Applicant requests upgrade of his discharge to honorable.  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.  An under other than 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 a retention warning and a nonjudicial punishment proceeding for violation of Article 114 (dueling, failure to report a duel).  The Applicant was also determined by the command psychologist to be a malingerer when he attempted suicide and claimed to be suffering from post traumatic stress disorder.   Violations of Articles 114 and 115 (malingering) are considered serious offenses for which a punitive discharge is authorized at courts martial.  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 stated that he wanted an upgrade to enhance his employment opportunities.  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 enhancing employment or educational opportunities and this issue does not serve to provide a foundation upon which the Board can grant relief.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  

The Applicant stated that he would like to return to the military.  The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces.  Reenlistment policy of the Naval service is promulgated by the Commander, Navy Recruiting Command, 5722 Integrity Drive, Bldg 784, Millington, TN 38054.  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

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 114 (dueling, failing to report a duel) and Article 115 (malingering).

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.

E.  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 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