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

FOR OFFICIAL USE ONLY

ex-AR, USN
Docket No. ND06-00591

Applicant’s Request

The application for discharge review was received on 20060328.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions).  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 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 - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“My reason for an upgrade request is so I can rejoin the Navy and make a better choice than before.

While I was in the Navy I did my best until I lost my dad.  I know that’s not a good reason for me to make so many mistakes; but I did not really know my dad and by being in foster care all my life my dad’s death made it harder to handle.  I did not have anyone to talk to so I just stop caring about everything including myself.

I now wish I would have handled this whole ordeal a lot different.  I could have asked to see a counselor, or I could have talk to my chief.  I just was not thinking clearly.  During this point of my life I wish I had thought more about family.  Instead I was only thinking of myself.

I am now married and have a child on the way.  I would like to have a career that will help me take care of my wife and child.  I know now what it takes to get that career.  I know that the Navy would give me the opportunity to reach my lifetime goal.”

Documentation

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

Applicant’s DD Form 214 (Member - 4) (2)

PART II - SUMMARY OF SERVICE

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

	Inactive: USAR (DEP)	20001110 - 20010623	ELS
		USNR (DEP)	20021126 - 20030303	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20030304		Date of Discharge:  20050209

Length of Service (years, months, days):

	Active:    01  11  06  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  93 days
	Confinement:		  30 days

Age at Entry:  22

Years Contracted:  4

Education Level:  12				AFQT:  38

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NA*			Behavior:  NA*		OTA:  NA*

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):

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

Chronological Listing of Significant Service Events: 

021126:	Pre-service waiver for Army DEP granted.

030919:	Applicant to unauthorized absence at 0700.

031015:	Applicant from unauthorized absence at 0700 (26 days/surrendered).

031024:	NJP for violation of UCMJ, Article 86: Absence from unit fm on or about 030919 until on or about 031015.  
[Details extracted from Commanding Officer’s message dated 050108.]
	Award:  Forfeiture of $600.00 per month for 2 months (suspended for 6 months), restriction and extra duty for 45 days (15 days suspended for 6 months).  No indication of appeal in the record.

031024:	Retention Warning:  Advised of deficiency (CO’s NJP of 031024 for violation of UCMJ, Article 86, Absence from unit, organization or place of duty).  Notified of corrective actions and assistance available, advised of consequences of further deficiencies, issued disciplinary and discharge warning.

031110:	Medical entry:  Mental Health Consultation Report, Medical Department, USS Abraham Lincoln (CVN-72), LT R_ R_, MSC, USNR, Ph.D, Ship’s Psychologist:  This was the first evaluation for this 22 year-old single African-American male AR/USN/AD with 7 months CAD currently o restriction stationed aboard the USS Abraham Lincoln (CVN-72).
	History of Present Illness:  Patient (Applicant) referred himself to Psychology due to “feeling depressed, angry, and hopeless.”  Patient reported that the feels alone in the world.  Patient was placed in foster care at age 5 years old due to excessive abuse and neglect by his birth mother.  He stated that he was raised in group homes for the majority of his life thus limiting his experience with nurturing individuals. He reported that he was lone in school most of his life and has had few friend throughout his life.  Patient reported that he met his father when he was 21 years old.  His father was dying due to being HIV positive.  Patient reported that his father was tied up and beaten to death by unknown people in September 2003.  He reported that he finally met his grandfather who is currently diagnosed with colon cancer.  Patient reported that he feels that it is unfair that he has had such a poor life at this point.  Patient reported a history of erratic mood swings.  Patient stated that he feels depressed most days now and feels hopeless and helpless in his life.  Patient reported that he doesn’t get enjoyment out of most activities.  He reports a very limited support system and a limited amount of coping skills.
	Provisional diagnoses: 
	Axis I:  Occupational Problems
	Axis II:  Deferred
	Axis III:  None reported
	Axis IV:  Occupational problems
	Axis V:  61-70.
	Recommendations:  The patient was educated regarding his diagnoses and disposition.  Patient did indicate an understanding of the same.  Patient to f/u with Dr. Rice at 1300 on 031114.

031114:	Medical entry:  Chronological Record of Medical Care, Medical Department, USS Abraham Lincoln (CVN-72), LT R_ R_, MSC, USNR, Ph.D, Ship’s Psychologist:  22 y/o AD/E1/USN w/8 mos CAD (Applicant) currently on restriction for being UA for 27 days.  Ten days until off restriction.  He is worried what he will do once off, specifically whether or not he will go UA again.  PT went UA by not returning from Emergency Leave s/p father was murdered.  PT was not close to father & initially ambivalent about going on emergency leave.  While on leave he started to reconnect w/estranged family making hard for him to return.  PT was born & raised in Philly.  He was raised in foster care and came into the Navy to turn life around & stay out of trouble.  He did several years of counseling as a late adolescent.  Not disclosed at time of entry.  PT found counseling somewhat helpful.  PT sought help today b/c of his ambivalence about the Navy.  He wants out, but is aware that he has an obligation to service.
	Dx:  I:  Bereavement, occupational problems
	II:  deferred
	III:  none
	IV:  problems w/primary support group
	V: 61
	Plan:  1. Fit for full duty & responsible for his actions.  
	2.  Encouraged to speak w/chaplain +/or psych tech while this provider is on TAD.  F/u appt in 10 days.
	3.  Reviewed (illegible) plan.  PT states convincingly that he would return to medical or talk w/CoC if develops SI.

031124:	Medical entry:  Mental Health Progress Note, Medical Department, USS Abraham Lincoln (CVN-72), LT R_ R_, MSC, USNR, Ph.D, Ship’s Psychologist:  PT (Applicant)’s friend recently attempted suicide by OD.  PT is now off of restriction.  He continues to long for his family of origin.  He is very conflicted about his desire/ability to stay in the Navy.  He knows he has a lot of support here, but feels lost & unloved.  Discussed his losses in life.  Has lots he would like to ask his father – “Why did you leave me?”  Pained by never having the opportunity.
	Change in diagnosis?  No.
	Follow-up appointment in 2 weeks w/LT R_.

040105:	Applicant to unauthorized absence at 0730.

040119:	Applicant from unauthorized absence at 0730 (14 days/surrendered).

040122:	Forfeiture of pay, restriction and extra duty awarded and suspended at NJP on 031024 vacated due to continued misconduct.  
[Extracted from Commanding Officer’s message dated 050108.]

040123:	Applicant to unauthorized absence at 0730.

040227:	Applicant from unauthorized absence at 0830 (35 days/surrendered).

040303:	NJP for violation of UCMJ, Article 86 (2 specifications):
	Specification 1: Absent fm unit fm on or about 040105 until on or about 040119.
	Specification 2: Absent fm unit on or about 040123 until on or about 040227.  
[Details extracted from Commanding Officer’s message dated 050108.]
	Award:  Correctional custody for 30 days.  No indication of appeal in the record.

040304:	Applicant found fit for CCU.

040630:	NJP for violation of UCMJ, Article 86: Failure to go to appointed place of duty, to wit: 040616, 0930 man up and training.  
[Details extracted from Commanding Officer’s message dated 050108.]
	Award:  Forfeiture of $500.00 per month for 2 months (suspended for 6 months), restriction and extra duty for 30 days (23 days suspended for a period of 6 months).  No indication of appeal in the record.

040724:	Applicant to unauthorized absence at 0730.

040803:	Applicant from unauthorized absence at 0930 (10 days/surrendered).

040830:	Retention Warning:  Advised of deficiency (Drunkenness).  Notified of corrective actions and assistance available, advised of consequences of further deficiencies, issued disciplinary and discharge warning.

040928:	Forfeiture of pay, restriction, and extra duty awarded and suspended at NJP on 040630 vacated due to continued misconduct.

040929:	NJP for violation of UCMJ, Article 86 (4 specs).
	Specification 1: Absent fm until fm on or about 040724 until on or about 040803.
	Specification 2: Failure to go to appointed place of duty, to wit: 040906, 1000 IMPACT appointment.
	Specification 3: Failure to go to appointed place of duty, to wit: 040925, 0730 off-going duty section muster.
	Specification 4: Failure to go to appointed place of duty, to wit: 040928, 0730 on-coming duty section muster.  
[Details extracted from Commanding Officer’s message dated 050108.]
	Award:  Forfeiture of $669.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

041120:	NJP for violation of UCMJ, Article 86 (6 specs):
	Specification 1: Failure to go to appointed place of duty, to wit: 041017, 0615 restriction muster.
	Specification 2: Failure to go to appointed place of duty, to wit: 041019, 0615 restriction muster.
	Specification 3: Failure to go to appointed place of duty, to wit: 041024, 0615 restriction muster.
	Specification 4: Failure to go to appointed place of duty, to wit: 041029, 1645 restriction muster.
	Specification 5: Failure to go to appointed place of duty, to wit: 041103, 0615 restriction muster.
	Specification 6: Failure to go to appointed place of duty, to wit: 041104, 0615 restriction muster.
Violation of UCMJ, Article 90: Willful disobedience of superior commissioned officer on or about 041106.  
[Details extracted from Commanding Officer’s message dated 050108.]
	Award:  Restriction and extra duty for 30 days.  No indication of appeal in the record.

041216:	NJP for violation of UCMJ, Article 86 (3 specs).
	Specification 1: Failure to go to appointed place of duty, to wit: 041123, 0615, restriction muster.
	Specification 2: Failure to go to appointed place of duty, to wit: 041124, 0615 restriction muster.
	Specification 3: Failure to go to appointed place of duty, to wit: 041207, 2130 restriction muster.
	Violation of UCMJ, Article 90: Willful disobedience of superior commissioned officer on or about 041120.  
[Details extracted from Commanding Officer’s message dated 050108.]
	Award:  Bread and water for 3 days (suspended for 6 months), reduction to E-1.  No indication of appeal in the record.

050108:	Applicant notified of intended recommendation for discharge by reason of misconduct - pattern of misconduct, misconduct - commission of a serious offense, and Alcohol Rehabilitation Failure with the least favorable characterization of service as under other than honorable.

050108:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

050108:	Commanding Officer, USS ABRAHAM LINCOLN (CVN 72), recommended to Commander, Carrier Strike Group NINE that the Applicant be discharged under other than honorable conditions by reason of misconduct - pattern of misconduct (1910-140), misconduct - commission of a serious offense (1910-142) and alcohol rehabilitation failure (1910-152).  Commanding Officer’s comments:  “AA H_ (Applicant) has had several incidents revolving around alcohol.  He has been to mast numerous times.  He is constantly UA.  He was even UA from his alcohol treatment.  AA H_ has no regard for the Navy, authority, rules, or regulations.  He also states that he has no desire to stay in the Navy.  AA H_ has no potential for future service in the Navy.  I recommend characterization of service as other than honorable.”

050116:	Commander, Carrier Strike Group NINE, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.

050124:	Applicant to unauthorized absence at 0730.

050201:	Applicant from unauthorized absence at 1345 (8 days/surrendered.)

050201:	NJP for violation of UCMJ, Article 86:
	Specification: In that AR R_ H_, U.S. Navy, Transient Personnel Unit Puget Sound, Naval Base Kitsap-Bangor, Silverdale, Washington, on active duty, did, at or about 050124, without authority, absent himself from his unit, to wit: Transient Personnel Unit Puget Sound, located at Silverdale, Washington, and did remain so absent until at or about 050201.
	Award:  Forfeiture of $617.00 per month for 2 months, restriction for 60 days.  No indication of appeal in the record.

Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050209 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).  

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 2 retention warnings, 2 vacated suspended punishments and 7 nonjudicial punishment proceedings for violations of Articles 86 and 90 of the UCMJ.  The NDRB advises the Applicant that certain serious offenses warrant separation from the Navy in order to maintain proper order and discipline. Violations of Article 86 and 90 are considered serious offenses and a punitive discharge is authorized if adjudged at a special or general court-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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  Similarly, the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces.  Therefore, NDRB is not authorized to change a reenlistment code.  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 following is provided for the edification of the Applicant.  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 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, Articles 86, Absence without leave (more than 30 days) and 90, Assaulting or willfully disobeying superior commissioned officer.

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