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

FOR OFFICIAL USE ONLY

 ex-MMFR, USN
Docket No. ND06-00785

Applicant’s Request

The application for discharge review was received on 20060523.  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 personal appearance hearing before the Board in the Washington, D.C. Metropolitan area.  The Applicant did not designate a representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation by the American Legion.

Decision

A personal appearance hearing discharge review was conducted in Washington, D.C. on 20070808.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety in the discharge action and no inequity in the characterization of the Applicant’s service.  The Board’s vote was unanimous that the characterization of the discharge and the narrative reason for discharge shall not change.  The discharge shall remain:  UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT.  

PART I - ISSUES AND DOCUMENTATION

Issues, as stated

American Legion presents on behalf of the Applicant the following issue:

1. (Equity) Applicant’s punishment/discharge was too severe based upon his exceptional and trying family circumstances.

Documentation

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

Applicant prepared written statements, (4)
AMCROSS message in support of Applicant’s father, dtd March 05, 2000
Letter from Christopher East Health Care Center, dtd March 20, 2000
Documents from the University of Louisville Hospital dtd April 29, 2000
Document from the University of Louisville Hospital dtd May 15, 2000
Excerpt from Applicants Chronological record of medical care dtd Sept 01, 2000
Applicant’s signed letter to the NDRB thanking the board for it’s time and consideration - signed.
PREVENT 2000 certificate of completion of course of instruction in Alcohol Misuse and Drug Use Prevention, Interpersonal Responsibility, Health and readiness, Personal Finances, and Communication Skills dtd May 29, 1998
Various Photographs illustrating his problems and trying family circumstances.

PART II - SUMMARY OF SERVICE

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

	Inactive: USAF (DEP)	19960814 - 19961213	Unknown
		USNR (DEP)	19970313 - 19970818	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19970819		Date of Discharge:  20001015

Length of Service (years, months, days):

	Active:    03  01  27  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  56 days
	Confinement:		  30 days

Age at Entry:  19

Years Contracted:  4

Education Level:  12				AFQT:  46

Highest Rate:  MMFA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0 (3)			Behavior:  2.67 (3)		OTA:  3.21

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

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

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

Chronological Listing of Significant Service Events: 

981104:	NJP for violation of UCMJ, Article 91: Insubordinate conduct toward non-commissioned officer.
Violation of UCMJ, Article 92: Failure to obey order.
Violation of UCMJ, Article 117 (2 specs): Provoking speeches and gestures.
Violation of UCMJ, Article 128: Assault.
	Award:  Forfeiture of $537.90 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  Reduction suspended for 6 months.  No indication of appeal in the record.

981120:	Retention Warning:  Advised of deficiency (Violation of UCMJ, Article 91 - Insubordinate conduct toward non-commissioned officer; violation of UCMJ, Article 92 - Failure to obey order; Violation of UCMJ, Article 117 - Provoking speeches and gestures (2 specifications); violation of UCMJ, Article 128: Assault.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

981230:	Reduction to E-1 awarded at NJP on 981104 vacated due to continued misconduct.

981230:	NJP for violation of UCMJ, Article 92 (2 specs):
	Specification 1: Failure to obey other lawful written order.
	Specification 2: Failure to obey other lawful order.
	Award:  Forfeiture of $519.15 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

981230:	Retention Warning:  No further information found in service record.  [Extracted from Commanding Officer’s letter dated 000922.]

000316:	Applicant to unauthorized absence at 0550.

000414:	Applicant from unauthorized absence at 1600 (29 days/surrendered).

000421:	Applicant to unauthorized absence at 0550.

000428:	Applicant from unauthorized absence at 0550 (7 days/surrendered).

000502:	Applicant to unauthorized absence at 0550.

000520:	Applicant to Portsmouth Naval Hospital for Emergency Care.

000523:	Applicant admitted to Portmouth Naval Hospital for post-concussive syndrome.

000523:	Applicant from unauthorized absence at 0050 (20 days/surrendered).

000526:	Applicant released from Portsmouth Naval Hospital.  

000526:	Endorsement/Convalescent Recommendation, Naval Medical Center, Portsmouth, Virginia.  Medical Officer recommended 30 days convalescent leave.  

000715:	USS NASSAU LHA-4 Medical Dept.  22 year old reports to sick call with compliant of migraine headache since last night.  Patient states the headache is located in front of skull.  Patient was in a motor vehicle accident about 4-5 weeks ago.  Patient states pain is in the area where he received sutures.  Patient describes pain as throbbing, none radiant, rating a 9.  Patient states that the slightest noise makes headache worse.  Patient states he gets headaches QOD with some relief with meds.

000823:	USS NASSAU LHA-4 Medical Dept. C/O migraine HA.
	S:  23 year old with history of tension type HA since high school in usual state until ____ when involved in MVA.  PT complains of social stressors:  several CO masts related to UA and family problems.  Denies alcohol, drug problems.  Describes history frontal-temporal “shart, throbbing – radiates to neck” Reports “sees purple, ___, yellow spots”  assoc _ nausea.  No relief  __ calan.  Reports “my whole body aches from MVA”  reduced sleep reduced energy reduced concentration reduced appetite.  Thinks about suicide “but doesn’t think I could carry it out”  “Nobody helps me.”
	Suspect Chronic Pain Syndrome with social stressors
--  contracts for safety
--  discontinue calan due to constipation
--  continue midrin as abortive.  Begin Zoloft 50 mg
--  follow up with neuron – consider medical board

000901:	Follow Up Headache Clinic, Division of neurology, Naval Medical Center, Portsmouth, Virginia.  Past Medical History:  5/00 Motor Vehicle Accident.  Impact to passenger side.  Facial lacerations, concussion.  Cracked ribs.  3 days inpatient hospitalization.  Pt has not had evaluation yet by psychiatry, because he showed up hours later than his appt time.  He has another appt. scheduled for 9/12.  Follow up with neurology HA clinic 1 month.

000901:	Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 86 (3 specs):  Specification 1: Did, on or about 0550, 000414, without authority, absent himself from his unit and did remain so absent until on or about 1600, 000414.  Specification 2: Did, on or about 0550, 000421 without authority, absent himself from his unit and did remain so absent until on or about 0550, 000428.  Specification 3: Did, on or about 0550, 000520, without authority, absent himself from his unit, and did remain so absent until on or about 0050, 000523.  Violation of the UCMJ Article 87 (2 specifications):  Specification 1: Did, on or about 000329, through design miss movement.  Specification 2: Did, on or about 000502, through design miss movement.

000901:	  Charges referred to summary court-martial.

000906:	Applicant informed of charges.

000907:	Summary Court-Martial.
	Charge:  violation of the UCMJ, Article 86 (3 specs):
	Specification 1: UA from 000316-000414.
	Specification 2: UA from 000421-000428.
	Specification 3: UA from 000502-000523.
	Charge II: violation of the UCMJ, Article 87 (2 specs):
	Specification 1: Missing movement on 000329.
	Specification 2: Missing movement of 000502.
	Finding: to Charge I and II and the specifications there under, guilty.
	Sentence: Confinement for 30 days, reduction to E-1.
	CA action 000913:  Sentence approved and ordered executed.

000907:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable by reason of misconduct - pattern of misconduct and misconduct - commission of a serious offense.

000907:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

000912:	Psychiatry Clinic, Naval Medical Clinic, Portsmouth, VA.  23 year old active duty, E-1 was referred from the emergency service for evaluation of depression.  The patient was in his usual state of mental health until Feb 2000 when he learned his father had been assaulted and was on life support in a hospital.  He went on UA on 3 separate occasions (totaling more than 60 days).  
	Axis I:  Adjustment Disorder, unspecified occupation problem
	Axis II:  No diagnosis
	Axis III:  s/p concussion
	Axis IV:  ___ father’s illness
	Axis V:  80
	Recommendation 1.  Psychiatrically fit for confinement and separation from USN
2.	POC at NMPC is LT D_
3.	Case D/W Dr Y_ (staff)

000922:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct and misconduct due to commission of a serious offense.

001011:	Commander, Amphibious Group TWO, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct.

001015:	DD Form 214:  Applicant discharged.

011127:	NDRB documentary record review Docket Number ND01-00643 conducted.  Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20001015 by reason of misconduct due to a pattern of misconduct (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 contends that his characterization of service is inequitable based upon his exceptional and trying family circumstances.  While he may feel that his trying family circumstances 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.  

The Applicant submitted additional documentation to support his post service equity claim.  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 evidence submitted by the Applicant, 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.  

The Applicant claims his 2 previous nonjudicial punishments were not warranted.  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 nonjudicial punishment proceedings for violations of UCMJ Articles 91 (Insubordinate conduct toward non-commissioned officer), 92 (Failure to obey order), 117 (Provoking speeches and gestures) and 128 (Assault).  The Applicant also received a summary court martial for violation of UCMJ Articles 86 (Unauthorized Absence) and 87 (Missing movement).  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.  

The following is provided for the edification of the Applicant.  The Applicant has exhausted his opportunities for review by the NDRB.  The Applicant may, however, petition the Board of Correction of Naval Records (BCNR), 2 Navy annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

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 87 (Missing movement), 91 (Insubordinate conduct toward non-commissioned officer), 92 (Failure to obey order), 117 (Provoking speeches and gestures) and 128 (Assault).  

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