ex-ENFA, USN
ND06-01089

Current Discharge and Applicant’s Request:

Application Received:  				20060815
Narrative Reason for Separation:			
Character of Service:				
Discharge Authority:				MILPERSMAN 1910-140
Last Duty Assignment/Command at Discharge:	USS JOHN F. KENNEDY (CV-67)

Applicant’s Request:
	Narrative Reason change to:		HUMANITARIAN
	Characterization change to:		
	Review Requested:			
Representation:  					
Applicant’s Issues as Summarized by the Board 	1.  Equity – In-service 
						2.  Equity – Post -service

Decision:

By a vote of  the Characterization shall  .	
By a vote of  the Reason for Discharge shall   - .

Date of Decision:					20070802
Location of Board:				Washington D.C.
Complete Service Record:				
Complete Medical Record:			
Complete Discharge Package:			

Regarding propriety, the Board found the discharge:	
Regarding equity, the Board found the discharge:	

Discussion

Issue 1 (Equity).  Even though, the Applicant provides evidence of in-service performance in support of his request for upgrade and mentions extenuating circumstances surrounding his discharge, only when the service of a member of the U.S. Navy has been honest and faithful, is it 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 one retention warning and two non-judicial punishment proceedings for violations of UCMJ Articles 86 (unauthorized absence), 91 (disrespect in language and deportment towards a senior noncommissioned officer, disobey a lawful order), and 92 (dereliction of duty).  Violations of UCMJ Articles Article 91 are considered serious offenses for which a punitive discharge is warranted 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.  

Issue 2 (Equity).  Although the Applicant provides evidence of post service conduct as argument in support of his request for upgrade, 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.  It should be noted that the NDRB is authorized to consider post-service factors in the re-characterization 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.  However as of this time, the Applicant has not provided sufficient post-service documentation to consider mitigating the misconduct that resulted in the characterization of discharge.

There is a presumption of regularity in the conduct of Government affairs.  This presumption will be applied in any review 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.

.

Summary of Service:

Prior Service:
Inactive: USNR (DEP)				19990426-19990607 
Active:        		               		NONE      
Period of Service Under Review:
Date of Enlistment:  				19990608     
Years Contracted:  				;        
Date of Discharge:				20020618
Length of Service:				03  Yrs  00  Mos  11  Days
Time Lost During This Period:			
Days Unauthorized Absence:			     
Days Confinement:				     

Education Level:  				
Age at this Enlistment:  				
AFQT:  						76
Highest Rate/Rank:				EN3

Performance Evaluation Averages (number of marks):
Performance:					NOT FOUND IN RECORD
Behavior:					NOT FOUND IN RECORD
OTA:						NOT FOUND IN RECORD
Extracted from:  
Applicant’s Supporting Documents    Other:       

Awards and Decorations (as listed on the DD Form 214):
NATIONAL DEFENSE SERVICE MEDAL

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

20011001:	NJP for violation(s) of UCMJ:
	Article 86: Unauthorized absence from 20010318 until 20010319.
	Article 91: (2 specifications) Disrespectful in language and disrespect in deportment on 20010918.
	Article 92: Dereliction of duty on 20010821 and 20010919.
	Award:  Forfeiture of $654.00 for 2 months (1 month suspended for 6 months), restriction and extra duty for 45 days, reduction to E-3..
	No indication of appeal in the record.

20011001:	Retention Warning:  Advised of deficiency (Your CO’s NJP held on 20011001, for VUCMJ, Articles 86, 91, 92; Unauthorized absence, Insubordinate conduct and Dereliction of duty), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

20020412:	NJP for violation(s) of UCMJ:
	Article 91: Disobey a lawful order and disrespect to a Chief Petty Officer on 20020319.
	Award:  Forfeiture of $655.00 for 2 months, restriction and extra duty for 30 days, reduction to E-2..
	No indication of appeal in the record.

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

20010320:	Psychiatry consult:  Diagnosis:  Attention Deficit Disorder.
	Plan/Rec  1:  Patient is psychiatrically fit for full duty
	2.  He agrees to seek medical help if suicidal or homicidal ideation occur
	3.  He is fully responsible for his actions
	4.  Risks/benefits/side effects if D_ d/w po.  PT gives informed consent to D_, will start 250 mgs po tid.
	5.  CBC, che -15, ____
	6.  valp___ level 12 June
	7.  RTC Dr T_ 17 Jun 1400
	8.  Goal is to attend therapeutic level of Depakote.  If level, ___ may increase Depakote to 500 mg PO bid.
	9.  P/W patient’s medical officer USS JFK, by phone.
	10.  P/W patient who understands and ____.
	11.  Patient informed of my TAD
	12.  POC CDR T_ 542____.
	HPI/PH voluntary evaluation for this 19 year old male with 1 ½ year CADU, USS JFK.  Patient Pn ADHD 7th – 12th grade, stopped meds prior to military.  He recalled that Ritalin was not effective and that Repalcobe was ___ effective.  	

20010711:	Record of Mental Health Treatment:  Patient reports same problems as already documented.  Reports wife cheats on him, lies to him, her child may not be his, etc.  Wife seems to introduce increased drama and invites him into complicated situations that end up impairing him at work.
	A.  I R/O cyclothymic D/O (hard to tell because patient endorses ALL symptoms!!)  R/O ADHD (patient compensates without meds.)
	II:  Deferred – Borderline diagnosis (suicidal ideation, history impulsive drinking and sex, intense anger episodes.)
	P:  Patient will follow up with  undersigned for outpatient therapy focusing on awareness of unmet needs; emotional regulation and practicing self care and better judgment.  Meds may only be marginally helpful as this patient is marginally compliant.  Will contact command to get work perf. Report.

20010920:	Record of Medical Treatment:  Scheduled appointment:  Patient  reports ongoing chaos and turmoil.  I didn’t listen to much of it – I redirected the conversation right away to his serious impairment and patient stopped smiling inappropriately and got serious today.  He seemed to listen.
	AXIS I:  No diagnosis
	AXIS II:  Personality disorder – Histrionic (Patients most prominent  sx are overly dramatic behavior, need for attention, dramatic rapidly shifting emotions, superficial rel’s suggestibility).  Patient has Borderline fx, but is overall mor histrionic.
	P:  Fu with undersigned weekly and get involved with 12 step program like codependents anonymous that he could attend when we’re in port.  Command notified.  

20020402:	Record of Medical Treatment:  Patient stated that everything had been going fine and he hadn’t  been in trouble recently.  Said that one month ago his EN1 A_ began to single him out, pick on him and blame him for everything that went wrong.  Stated that his LCPO and AuxO know about it and “don’t care.”  He said today he’s in trouble for being absent when he was actually there and that this is the last straw, he is thinking about jumping. 
	Observation:  Patient tearful, thoughts tangential, speech coherent but copious, very dramatic demeanor not psychotic. 
	Diagnosis:
	(A) II:  Histronic PDIC Borderline features – EPTE, disqualifying
	Chain of command input – LT S_ and LTJG C_ came (with patient’s permission) to discuss difficulties he’s having.  They report that he’s been cursing at his LPO and LCPO.  There appears to be a resurge of poor judgment and chaos with patient.  Chain of command believes it has exhausted the channels of counseling and discipline.
	(P)  This patient has received counseling on and off for two years.  I believe he was originally misdiagnosed, but no matter – he has been consistently offered insight, support and redirections both from his chain of command and mental health.  He has even been formally warned about his problematic behaviors yet his judgment and reliability still fails to improve and is considered significantly impaired.  He has exhausted the channels of counseling and discipline and his pattern of behavior is of sufficient severity to make him unsuitable for further military service.  It is recommended that he be administratively separated according to Milpersman 1910-122.  For today patient calmed down after speaking with chain of command (who agreed to move him temporarily) and he agreed not to harm himself.

Elements of Discharge:  [INVOLUNTARY]

Discharge Process:				
Date Notified:					20020419
Reason for Discharge				
						
Least Favorable Characterization:			
Record Supports Narrative Reason:			
Date Applicant Responded to Notification:		20020419
Rights Elected at Notification:
Consult with Counsel			
Administrative Board			
Obtain Copies	  			
Submit Statement(s) (date)			
GCMCA Review				

Administrative Board Date:			NOT APPLICABLE
Recommendation of Commanding Officer (date):	  20020502
Discharge directed by (date):			COMMANDER, CARRIER GROUP SIX 20020508
Narrative reason directed:				
Characterization directed:				
Date Applicant Discharged:			20020616

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 Under Review:
	Service/Medical Record:				3
	Other Period of Service:				0
       Related to Post-Service Period:
	Community Service:				0
	Education:					0
	Employment:					2
	Health/Medical:					0
	Character Statements:				1
	Criminal Records Checks:				0
	Additional Statements from Applicant:		1
        Other Documentation	 (Describe Below)		0

        Total Number of Pages:				7

       Description of Other Documentation:

Pertinent Regulation/Law

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.  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 91 (disobey a lawful order, disrespect towards a senior noncommissioned officer.)

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