Character by U6SJEYO6

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




                                       ex-PCSR, USN
                                   Docket No. ND02-00439

Applicant’s Request

The application for discharge review, received 020228, requested that the characterization of
service on the discharge be changed to general/under honorable conditions. The Applicant
requested a documentary record discharge review. The Applicant listed the American Legion as
the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 021029. After a
thorough review of the records, supporting documents, facts, and circumstances unique to this
case, NDRB discerned no impropriety or inequity in the characterization of the Applicant’s
service. The Board’s vote was unanimous that the character of the discharge shall not change.
The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Separation
in lieu of trial by court martial, authority: NAVMILPERSMAN, Article 3630650.




The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and
Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent
Regulation/Law, Part IV - Information for the Applicant.
INDEX: A7200/A9323/A9221/A9217/A0139/A9223/A9225/A9221
Docket No. ND02-00439


                PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. (Equity Issue) This former member avers that his mixed personality disorder that was diagnosed
in service contributed to and sufficiently extenuated his misconduct of record to warrant upgrade of
his characterization of service.

2. (Equity Issue) This former member further requests that the Board include provisions of
SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in
assessing the merits of this application.

Documentation

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

    Copy of DD Form 214
    Appointment of Veterans Service Organization form VA Form 21-22
    Letter from Seventh Judicial District, Department of Correctional Services,
      parole/probation officer dated November 13, 2001
    Letter from Department of Veterans Affairs, Homeless Outreach Social Worker
      dated November 11, 2001
    Character reference from a friend dated July 22, 2001
    Letter from National Personal Records Center to Honorable J_ A_ L_ dated June
      22, 2001
    Copy of authorization for release of military medical patient records dated June 21,
      2001
    Two hundred and seventy pages from Applicant's service records




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Docket No. ND02-00439


                            PART II - SUMMARY OF SERVICE

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

       Active: None
       Inactive: USNR (DEP)          860815 - 870614        COG

Period of Service Under Review:

Date of Enlistment: 870615                   Date of Discharge: 881208

Length of Service (years, months, days):

       Active: 01 05 24
       Inactive: None

Age at Entry: 17 Parental Consent            Years Contracted: 4

Education Level: 12                  AFQT: 50

Highest Rate: PCSA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: 2.90 (2)         Behavior: 3.00 (2)            OTA: 3.00

Military Decorations: None

Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/separation in lieu of trial by court
martial, authority: NAVMILPERSMAN, Article 3630650.

Chronological Listing of Significant Service Events:

871024:        Reported to Naval Support Office, La Maddalena, Italy, for duty.

871216:        Counseling: Advised of deficiency (personal behavior, dress/appearance.),
               notified of corrective actions and assistance available.




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Docket No. ND02-00439

871217:     Counseling: Advised of deficiency (Problems with getting haircut.). Applicant is
            currently being evaluated for alcohol dependency.

871217:     Counseling: Advised of deficiency (Personal behavior, dress/appearance and
            responsibilities.), notified of corrective actions and assistance available.

880104:     Counseling: Advised of deficiency (Poor personal hygiene, careless, lack of
            attention to detail, sloppy at times militarily i.e. haircuts, inability, non-
            willingness to follow directions correctly), notified of corrective actions and
            assistance available.

880122:     Counseling: Advised of deficiency (performance, personal behavior and
            responsibilities.), notified of corrective actions and assistance available.

880203:     Retention Warning: Advised of deficiency (Lack of attention to detail in
            discharging duties. Frequent instances of late arrivals at work.), notified of
            corrective actions and assistance available, advised of consequences of further
            deficiencies, and issued discharge warning.

880223:     NJP for violation of UCMJ, Article 86 (2 specs): (1) Failure to go to appointed
            place of duty on 22Jan88, (2) Failure to go to appointed place of duty on 6Feb88,
            violation of Article 92: Dereliction of duty on 4Feb88, failure to obey a lawful
            order on 4Feb88, violation of Article 108: Destruction of military property on
            20Jan88, violation of UCMJ, Article 134: Leaving the scene of an accident on
            20Jan88.
            Award: Forfeiture of $300 per month for 2 months, extra duty for 45 days,
            reduction to PCSA and oral reprimand. No indication of appeal in the record.
            [Complete NJP extracted from Commanding Officer's message dated 880723.]

880223:     Counseling: Advised of deficiency (Attention to detail, personal appearance, keep
            haircut.), notified of corrective actions.

880622:     Counseling: Advised of deficiency (unsat uniform), notified of corrective actions
            and assistance available.

880623:     Counseling: Advised of deficiency (Came back to work in the same dirty uniform
            worn the day previously. Also had told to get a haircut. Two weeks previously
            told to trim mustache.), notified of corrective actions and assistance available.

880624:     Counseling: Advised of deficiency (Unsat to not keep me informed about what
            was going on.), notified of corrective actions and assistance available.

880707:     Report and disposition of offense(s): Violation of UCMJ, Article 111: Operate a
            government vehicle in a reckless manner on 880707, Article 108: Damaging




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Docket No. ND02-00439

            government property on 880707 by hitting a parked minivan and breaking the rear
            side door window.

880708:     Ambulance Report Sheet: S/P: Suicide Gesture with ingestion of Motrin and
            possibly Tylenol overdose.

880710:     Discharged to full duty. Not currently suicidal, homicidal or psychotic per psych
            eval.

880713:     Applicant notified of intended recommendation for discharge with an under
            honorable conditions (general) by reason of unsatisfactory performance as
            evidence by your lack of attention to detail in discharging your duties as a postal
            clerk and your inability to comply with regulations concerning military behavior
            and appearance.

880714:     Applicant advised of his rights and having consulted with counsel certified under
            UCMJ Article 27B, elected to waive all rights except the right to obtain copies of
            the documents used to support the basis for the separation and submit a statement.
            Applicant objected to the separation.

880714:     Counseling: Advised of deficiency (Pay attention to what you're doing, listen to
            superiors, wear a proper uniform, keep your haircut.), notified of corrective
            actions and assistance available.

880723:     Commanding Officer, U.S. Navy Support Office (NAVSUPPO), La Maddalena,
            Italy, recommended to CNMPC, that Applicant be discharged due to
            unsatisfactory performance.

880801:     CNMPC advised CO, NAVSUPPO no action taken on the discharge request since
            member has one or more valid reasons for misconduct and therefore must be
            processed for misconduct. If desired, command may reprocess member for
            separation for "misconduct due to commission of a serious offense" using the
            administrative board procedures.

880809:     NJP for violation of UCMJ, Article 134: Wrongfully secret certain mail on
            8May88, to wit: a letter addressed to Commanding Officer.
            Award: Oral reprimand, extra duty for 45 days. No indication of appeal in the
            record.

880812:     Applicant notified of intended recommendation for discharge under other than
            honorable conditions by reason of misconduct due to the commission of a serious
            offense as evidenced by the non-judicial punishment on 9 August 1988 for
            secreting mail.




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Docket No. ND02-00439

880812:     Applicant advised of his rights and having consulted with counsel certified under
            UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

880819:     An Administrative Discharge Board, based upon a preponderance of the evidence
            and by unanimous vote, found that the Applicant had committed a serious offense,
            that the misconduct did not warrant separation, and recommended retention and
            Applicant receive proper supervision.

880907:     Psychiatric evaluation: Impression: (1) Not currently suicidal/homicidal or
            psychotic. Applicant found to be fully responsible for actions. (2) Alcohol abuse
            vs alcohol dependence by history. (3) Mixed personality disorder with immature
            dependent & avoidant features mod-severe EPTE. (4) Status post Motrin
            overdose. Recommendation: (1) Return to full duty when medically cleared. (2)
            Should member fail to adequately adjust to military life command should consider
            admin separation IAW NPC Man Art 3620200.

880913:     Charges preferred to special court-martial for violation of the Uniform Code of
            Military Justice (UCMJ) Article 86: Failure to go appointed place of duty at time
            prescribed on 1800 to 2000, 27Aug88 and Article 121: Steal four VHS video
            tapes, a value of $174.71, the property of the Recreational Services Department
            between 26Jun88 and 31Aug88.

881005:     Commanding Officer, U.S. Navy Support Office, La Maddalena, Italy,
            recommended discharge under other than honorable conditions by reason of
            misconduct due to the commission of a serious offense.

            Note: Commence apparent dual processing of Applicant’s discharge.

881021:     Applicant requested an administrative discharge under other than honorable
            conditions in lieu of a trial by court-martial. Applicant consulted with counsel and
            was fully advised of the implications of request. The Applicant stated understood
            the elements of the offense(s) with which was charged, and admitted was guilty of
            all the charges preferred against Applicant. Specifically, admitted to violating
            UCMJ, Article 86: Failure to go appointed place of duty at time prescribed on
            1800 to 2000, 27Aug88 and Article 121: Steal four VHS video tapes, a value of
            $174.71, the property of the Recreational Services Department between 26Jun88
            and 31Aug88. The Applicant stated was completely satisfied with the counsel he
            had received. The Applicant understood that if discharged under other than
            honorable conditions, it might deprive him of virtually all veterans' benefits based
            upon current enlistment, and that he might expect to encounter substantial prejudice
            in civilian life in situations wherein the type of service rendered or the character of
            discharge received therefrom may have a bearing.

881104:     Report of Medical Examination: Separation examination: Notes: 1. Alcohol
            abuse in past - has been through Level II, has not had ETOH intake in > 6 months.


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Docket No. ND02-00439

            2. 6 months ago saw psychiatrist upon Motrin o.d. - dx of mixed personality
            disorder. This patient has been examined. He has had no changes since final visit
            to see psychiatrist. Hs is not in need of another psychiatric consultation prior to
            discharge from the service. Summary of defects and diagnoses: 1. Needs eye
            retraction for glasses 2. History of alcohol abuse - may need to be monitored in
            future. 3. Dx of mixed personality disorder by psychiatry.

881109:     Commanding Officer, U.S. Naval Support Office, La Maddalena, Italy,
            recommended to the Commander, Fleet Air Mediterranean, Naples approval of
            Applicant's request for discharge in lieu of trial by court-martial. Commanding
            Officer's comments: "SR H_ (Applicant)'s continued presence on active duty is
            detrimental to the good order and discipline of this command. He has received an
            enormous time commitment from his supervisors and has been unwilling to
            conform to the responsibilities of naval service. SR H_ (Applicant)'s abysmal
            disciplinary record of the past 12 months (2 non-judicial punishments totalling 7
            violations of the U.C.M.J.) finally has culminated with the referral of the charges
            in question to a special court-martial. His request for characterization of his
            service by an other than honorable administrative discharge in lieu of trial by
            special court-martial is most appropriate when viewed in context with the current
            charges and his past performance."

881115:     Commander, Fleet Air Mediterranean Naples, exercising GCMCA, approved the
            request for an administrative separation in lieu of a trial by court-martial, and
            directed Applicant’s discharge.

881125:     Chief of Naval Personnel recommended to Assistant Secretary of the Navy
            (Manpower and Reserve Affairs) Applicant be discharged with a general
            discharge under honorable conditions by reason of misconduct due to the
            commission of a serious offense.

            Note: This determination was based upon the service record and the findings of
            the administrative board for retention.

881128:     Transferred to Naval Station Philadelphia, PA for separation.

881130:     Assistant Secretary of the Navy (Manpower and Reserve Affairs) directed
            Applicant's discharge with a general discharge, under honorable conditions by
            reason of misconduct due to the commission of a serious offense.

881208:     Applicant discharged with an Other Than Honorable Condition in lieu of trial by
            court-martial.

            Note: Applicant’s decision to accept an OTH in lieu of trial by court-martial
            supersedes any other discharge documentation.




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Docket No. ND02-00439

881209:     CNMPC directed NAVSUPPO La Maddalena, Italy, to discharge Applicant under
            honorable conditions (general) by reason of misconduct due to the commission of
            a serious offense.

890103:     PSD Philadelphia PA advised CNMPC unable to comply with discharge authority
            directed on 881209 since Applicant was discharged on 88DEC08 under the
            authority of MILPERSMAN 3630650 (separation in lieu of trial by court martial)
            as directed by COMFAIRMED Naples ltr of 88NOV15




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Docket No. ND02-00439


  PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 881208 under other than honorable conditions in lieu of a trial
by court-martial (A and B). The Board presumed regularity in the conduct of governmental
affairs (C). 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
(D and E).

Issue 1: When reviewing a discharge, the NDRB does consider the extent to which a medical
condition might affect an Applicant’s performance and ability to conform to the military’s
standards of conduct and discipline. Competent medical authority, diagnosed the Applicant as
having a Mixed Personality Disorder with Immature Dependent and Avoidant features. The
medical record specifically states that the Applicant was found to be fully responsible for his
actions. In addition, the service record is devoid of any evidence that Applicant was not
responsible for his actions and therefore should be held accountable for his own misconduct.
The Applicant’s service record is marred by numerous documented counseling sessions, award of
non-judicial punishment on two occasions, and, charges were preferred to a special court-martial.
The Applicant’s request for an administrative discharge in lieu of a trial by court martial was
granted. The discharge was proper and equitable. Relief denied.

Issue 2: Normally, to permit relief, an error or injustice must have existed during the period of
enlistment in question. No such error or injustice occurred during the Applicant’s enlistment.
Additionally, 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. However, 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. The evidence submitted by the Applicant does not mitigate his conduct
while on active duty, and therefore an upgrade based on post-service conduct is not warranted.
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
additional documentation to support any claims of post-service accomplishments at that time.
Representation at a personal appearance hearing is recommended but not required.



Pertinent Regulation/Law (at time of discharge)

A. Naval Military Personnel Manual, (NAVPERS 15560A), effective 15 Jun 87 until 24 May 89,
Article 3630650, PROCEDURES FOR PROCESSING ENLISTED PERSONNEL FOR
SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.


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Docket No. ND02-00439



B. A punitive bad conduct discharge may be adjudged for violation of the Uniform Code of
Military Justice, Article [e.g., 86, unauthorized absence for a period more than 30 days] upon
conviction by a Special or General Court-Martial, in accordance with the Manual for Courts-
Martial.

C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review,
1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE
REVIEW.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review,
1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review,
1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.




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Docket No. ND02-00439


                    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
“afls14.jag.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:

               Naval Council of Personnel Boards
               Attn: Naval Discharge Review Board
               720 Kennon Street SE Rm 309
               Washington Navy Yard DC 20374-5023




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