ex-EMFN, USN
ND06-00982

Current Discharge and Applicant’s Request:

Application Received:  				20060718
Narrative Reason for Separation:			
Character of Service:				
Discharge Authority:				MILPERSMAN 1910-142
Last Duty Assignment/Command at Discharge:	USS DWIGHT D. EISENHOWER (CVN-69)

Applicant’s Request:
	Narrative Reason change to: 		n/a
	Characterization change to:		
	Review Requested:			
Representation:  					

Decision:

Date of Decision:					20070523
Regarding propriety, the Board found the discharge:	
Regarding equity, the Board found the discharge:	
 (or BCD only) The Board found that clemency was: 	
Vote (characterization/reason)			/ 
Location of Board:				Washington D.C.
Complete Service Record:				
Complete Medical Record:			
Discharge Package Complete:			
The Discharge shall remain:			

.

Summary of Service:

Prior Service:
Inactive: USNR (DEP)				19990313 - 19990916
Active:   NONE		               		     
Period of Service Under Review:
Date of Enlistment:  				19990917
Years Contracted:  				;        
Date of Discharge:				20040903
Length of Service:				04  Yrs  11  Mos  18  Days
Time Lost During This Period:			  24
						        
			
Education Level:  				
Age at this Enlistment:  				
AFQT:  						84
Highest Rate/Rank:				EM3

Performance Evaluation Averages (number of marks):
Performance/Behavior/OTA:			3.33 (6)		3.17(6)		3.10
	Extracted from:  Supporting Documents   Other:       

Awards and Decorations (as listed on the DD Form 214):
NAVY "E" RIBBON, GOOD CONDUCT MEDAL PERIOD ENDING 02SEP17, NATIONAL DEFENSE SERVICE MEDAL

Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

20030505:	Disqualification from Submarine Duty.  Member does not meet the established physical standards for nuclear field duty and ionizing radiation work.  A waiver of the physical standards is not recommended.

20040514:	NJP for violation(s) of UCMJ:
	Article 86:  On or about 20040205, absent yourself from unit and did remain so absent until on or about 20040213 (8 days).  Guilty.
	Article 128:  On or about 20041209, assault EM2 by marking his pants with your foot and kicking him in the shin and groin.  Not Guilty.
	Award:  Forfeiture of $817.00 for 1 month, restriction and extra duty for 18 days, reduction to EMFN.  Reduction suspended for 6 months.
	No indication of appeal in the record.

20040514:	Retention Warning:  Advised of deficiency (You appeared before the Commanding Officer on 20040514, VUCMJ, Article 86, Unauthorized absence and Article 128: Assault.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

20040813:	NJP for violation(s) of UCMJ:
	Article 86:  Unauthorized absence.
	Specification 1:  On or about 20040708, without authority, absent yourself from your unit and did remain so absent until on or about 20040712 (4 days).
	Specification 2:  On or about 20040629, without authority, fail to go at time prescribed to your appointed place of duty.
	Specification 3:  On or about 20040702, without authority, fail to go at the time prescribed to your appointed place of duty.
	Specification 4:  On or about 20040727, without authority, absent yourself from your unit and did remain so absent until 20040806 (11 days).
	Article 91:  Willfully disobey a lawful order on or about 20040625.
	Award:  Restriction and extra duty for 30 days.
	No indication of appeal in the record.

Medical Record Entries Related to Characterization of Service or Narrative Reason for Separation

20021027:	Medical Board Results, Naval Ambulatory Center, Groton, Connecticut.  This 24 year old EM3 appeared before a medical board with diagnosis of allergic asthma.  Patient has a longstanding history of childhood asthma.  His symptoms had been quiescent for as many as three to four years until recently.  During his current duties he was involved in painting and refinishing boat equipment.
	Diagnosis:   (1) Asthma
		      (2) Seasonal allergies
	This medical board agrees with the above diagnosis.  The patient’s history is consistent with one of reactive airway disease.  It is recommended that that his case be referred to the Central Physical Evaluation Board for adjudication.

20021101:	Mental Health Department, Naval Ambulatory Center, Groton, Connecticut.  Mental status exam reveals a 24 year old male in acute distress.  He expressed major disappointment that he will not be able to pursue his career goal of becoming a navy seal because of his physical condition.  MMPI-2 test results suggest significant anxiety and mild depressive symptoms.  He appears to ruminate about his problems to the point that his sleep, appetite, and motivation are placed on hold and he withdraws and wants to run away.  This seems apparent in his desire to be discharged from the navy because of his physical problems.
	(A) Occupation problem, mild depression
	(P) Member is considered psychiatrically fit for full duty.  He will be seen for therapy aimed at helping him manage his disappoint.  

20031103:	Mental Health Division, USS Dwight D. Eisenhower.  This is a 25 year old single male, ET3 nuke with 4 years CADU.  He is assigned to RE Division.  He was referred for a follow up from an overnight psychiatric admission in August 2003.  Patient reports feeling frustrated with current occupational situation.  Specifically he notes that he joined the Navy to become a pilot, and was a nuke on a submarine until he developed reactive airway disease in the context of grinding paint on the submarine.  According to patient, this led to his losing his dolphins.  He was told he was transferring to a surface ship in San Diego, but due to multiple delays in the processing of his LIMDU board, he was transferred here instead.  He was admitted for one night on 12 Aug 03 after he presented with depressive symptoms.  He was released with a diagnosis of narcissistic traits, rule out personality disorder, and occupational problems.  This patient has significant narcissistic personality traits which have led to depressed mood in the context of what he views as unjust treatment.  While he may not be entirely incorrect in his assessment of his treatment, his response to it has not been constructive.  Essentially the patient has decided that he cannot succeed, and thus has put himself on the path to failure.  I attempted to discuss alternative ways to respond to his situation in a constructive way, but he rejected these out of hand, preferring to focus on how others have “ruined my life.”  He is also very focused on relatively minor medical problems (hemorrhoids, GERD) which he believe prove that the stress is ruining his life.  I again suggested OCIP and individual counseling, which the patient declined.  There is no evidence that the patient is at risk for harming himself, and is fully responsible for his actions.  I encouraged him to consider his options and follow up with me in 3 weeks, but I doubt he will do so.  He is fit for duty, but there is a high likelihood that his performance will continue to deteriorate.  He has the capacity to change this, but is choosing not to do so at this time.  If he were to change his mind and begin to work on these issues, he certainly has the potential to improve and do well.
	Axis I:  Occupation problems
	Axis II:  Narcissistic Personality Traits
	Axis III:  GERD, hemorrhoids, reactive airway disease by history
	Axis IV:  Routine military stress
	Axis V:  GAF 70
	Fit for full duty from a psychiatric standpoint, Recommended OCIP and individual counseling, which patient declined.  Patient is welcome to f/u with me if he desires.  The patient is fully responsible for his actions.  Above discussed with patient.. 

Elements of Discharge:  [INVOLUNTARY]

Discharge Process:				
Date Notified:					20040816
Narrative Reason(s):				

Least Favorable Characterization:			
Record Supports Narrative Reason:			
Date Applicant Responded to Notification:		20040816
Rights Elected at Notification:
Consult with Counsel			
Administrative Board			
Obtain Copies	  			
Submit Statement(s)			
GCMCA Review				
Board Date:					n/a	
Finding of Administrative Board:			n/A  
Recommendation of Commanding Officer (date):	  20040825
Discharge directed by (date):			COMMANDING OFFICER 20040825
Narrative reason directed:				
Characterization of directed:			 
Date Applicant Discharged:			20040903 

Additional Information Considered by Board

Type of documentation submitted by the Applicant and considered by the Board
       
       	Document Type					#Pages
       Related to Period of Service:
	Service/Medical Record:				13
	Other Period of Service:				15
       Related to Post-Service Period:
	Community Service:				0
	Education:					0
	Employment:					0
	Health/Medical:					0
	Character Statements:				0
	Criminal Records Checks:				0
	Additional Statements from Applicant:		0
        Other Documentation	 (Describe Below)		10

        Total Number of Pages:				38

       Description of Other Documentation:
       Consent Form for release of personal record/information (3 pages)
       Special Request/Authorization form
       Letter from Parents (4 pages)
       Letter to Congressman T_ L_ (2 pages)
       Letter to Senator (2 pages)
       Letter to Senator (2 pages)

For Personal Appearance Hearings only:
Applicant Testified:  
Applicant Available for Questions:  
Witnesses:        
Observers:        

Discussion of Discharge Review

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge, and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.

Applicant requests upgrade of his discharge characterization 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.  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 two nonjudicial punishment proceedings for violations of UCMJ Articles 86 (unauthorized absence) and 91 (willful disobedience).  Violations of UCMJ Article 91 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.

Applicant’s Issues:
1.  Equity—Isolated incident only/not deserving of General discharge for pattern of misconduct
2.  Equity – Retaliation against him by command
3.  Equity – Discharge negatively affecting ability to find employment

Acceptance of Applicant’s Issues:
The Board accepted Issue 1 for consideration.  

Issue 1 (Equity Isolated Incident).

The Applicant argues that his discharge was inequitable because his isolated incident of misconduct was not serious enough to separate him with a General discharge for a pattern of misconduct.   Members may be separated for Misconduct due to a Pattern of Misconduct when during the current enlistment they have two or more non-judicial punishments, court-martial, or civil convictions (or combination thereof) and have violated a NAVPERS 1070/613, administrative remarks counseling/warning.  A review of the Applicant’s service record establishes misconduct sufficient to meet the criteria for a discharge under applicable regulations.  There is no evidence of impropriety, inequity, or procedural irregularities in the Applicant's discharge.  The Applicant’s misconduct is clearly documented.  Therefore, relief is denied.

Regarding the Applicant’s Issues 2 and 3, the Board determined that  which can form the basis of relief for the Applicant or that the Board did not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding Issue 3.  With respect to Issue 2, regulations limit the Board’s review to a determination of the propriety and equity of discharges.

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 2002 until 25 April 2005, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

B.   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 V, Para 502, Propriety  and  Para 503, Equity.

C.  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 128 (assault).

ADDENDUM:  Information for the Applicant

Complaint Procedures:  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”.

Additional Reviews:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the 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.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  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.

Employment/ Educational Opportunities:  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.  

Reenlistment/ RE-code:  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.  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.

Medical Conditions and Misconduct:  DoD disability regulations do not preclude a disciplinary separation.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record.  Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or “PTSD.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  

Automatic Upgrades -  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 may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

Issues Concerning Bad-Conduct Discharges (BCD) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief.  With respect to a discharge adjudged by a court-martial, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  

Board Membership:  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