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

FOR OFFICIAL USE ONLY

ex-SA, USN
Docket No. ND06-00573

Applicant’s Request

The application for discharge review was received on 20060322.  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 20070111.  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 4-1 that the character of the 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

Equity:  Youth and immaturity.
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 for period under review
Applicant’s DD Form 214 for discharge on January 4, 2006 (Army/ARNGUS)
Certificate of Training for Combat Lifesaver Course 12-15 July 2005
Army Achievement Medal Certificate
Letter of Appreciation, dtd February 16, 2006
Letter of Appreciation, dtd February 17, 2006
Reference Letter from D_ S_ (Applicant’s mother), dated January 27, 2006
Reference Letter from W_ J_ S_ (Applicant’s father), dated January 27, 2006 (2 pgs)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19950815 - 19950912	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19950913		Date of Discharge:  19970314

Length of Service (years, months, days):

	Active:    01  06  02  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  24 days
	Confinement:		  None

Age at Entry:  19 

Years Contracted:  4 

Education Level:  12				AFQT:  32

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0 (1) 		Behavior:  3.0 (1) 		OTA:  3.00 

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):

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

Chronological Listing of Significant Service Events: 

960229:	NJP for violation of UCMJ, Article 92: Violation or failure to obey other lawful written order.
	Award:  Forfeiture of $100.00 pay per month for 2 months (suspended for 4 months), restricted to NAVSUBSCOL for 7 days.  No indication of appeal in the record.

960229:	Retention Warning:  Advised of deficiency (Violation of the UCMJ, Article 92, violation or failure to obey other lawful written order.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

970130:	Mental Health Consultation Report for evaluation on 970116:
	AXIS I: No Diagnosis or Condition
	AXIS II: Antisocial Personality Disorder (severe)
	History of present illness:  …Command’s medical noted he had a history of suicidal ideation for the past 10 months.
	Recommendation: The patient was educated regarding his diagnosis and disposition.  Patient indicated an understanding the same.  The patient is fit for full duty to be available for this provider’s strong recommendation for expeditious administrative separation IAW NAVMILPERSMAN 3620225.  The member is not considered to be mentally ill, (no medically boardable conditions), but manifest a long standing disorder of character and behavior which is of such severity as to render this individual unsuitable for continued military service in the U.S. Navy.  Although not currently considered suicidal or homicidal, this member is judged to represent a risk to self or others if retained on active duty, especially in view of his history of suicidal or homicidal ideation.

970222:	NJP for violation of UCMJ, Article 86: Going from his appointed place of duty at 0700, 961217, to wit: Fire Watch, Sponsor 7, USS CONSTELLATION (CV-64); going from his appointed place of duty at 1400, 961218, to wit: Fire Watch, Sponsor 7, USS CONSTELLATION (CV-64); going from his appointed place of duty at 1100, 991219, to wit: Fire Watch, Sponsor 7, USS CONSTELLATION (CV-64); unauthorized absence from unit at 1300, 970113 until 0700, 970115; unauthorized absence from unit at 0800, 970121 until 0700, 970131; unauthorized absence from unit at 1400, 970131 until 0700, 970210.
	Award:  Forfeiture of $400.00 pay per month for 1 month (suspended for 6 months), restriction and extra duty for 30 days, reduction to E-1 (suspended for 6 months).  No indication of appeal in the record.

970226:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by nonjudicial punishments of 960229 and 970221; convenience of the government on the basis of personality disorder as evidenced by the Mental Health Consultation Report of 970116 conducted by the Mental Health Unit, Base Medical Center, Naval Air Station, North Island.

970226:	Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to submit statements on own behalf either verbally or in writing and the right to obtain copies of the documents used to support the basis for the separation.

970304:	Applicant submitted conditional waiver request for general discharge from the naval service.  Letter indicated Applicant did not consult with legal counsel.

970307:	Commanding Officer directed the Applicant's general (under honorable conditions) discharge by reason of misconduct due to a pattern of misconduct.  

970430:	Commanding Officer forwarded the administrative discharge package to CNP.  Commanding Officer’s comments:  “SA S_’s (Applicant) behavior is contrary to good order and discipline and indicative of his disregard for rules and regulations.  Based on the available facts in this case, I separated SA S_ on 14 March 1997 from the Naval service with a General Discharge.”

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19970314 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).  

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 or 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 nonjudicial punishment proceedings for violations of Articles 86 and 92 of the UCMJ.  The Applicant’s violation of Article 92 of the UCMJ, failure to obey an order/regulation, is the commission of a serious offense.  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 youth and immaturity.  While he may feel that his immaturity 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 Applicant contends that his discharge should be changed due to his post-service accomplishments in the Tennessee Army National Guard.  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 the service.  The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  After a complete review of the entire record, including the Applicant’s honorable and noteworthy service in the National Guard, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct which precipitated the discharge.  Should the Applicant elect to request a perusal appearance hearing, the Board recommends the Applicant’s proof of post-service conduct be more comprehensive.  Additional documentation that could 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.  Additionally, for the edification of the Applicant, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  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.  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 11 Dec 97), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - A 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 92, failure to obey lawful order/regulation.

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