DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORD

S

2 NAVY ANNE

X

WASHINGTON DC 20370-510

0

ELP
Docket No. 3925-00
12 February 2002

From:
To:

Chairman,
Secretary

Board for Correction of Naval Records
of the Navy

Subj:

REVIEW OF

Ref:

(a) 10 U.S.C.1552

Encl:

(1) DD Form 149 w/attachments
(2) Case Summary
(3) Subject's Naval Record

Pursuant to the provisions of reference (a), Petitioner,

1.
a former enlisted member of the Navy, applied to this Board
requesting, in effect, that his naval record be corrected
by upgrading the other than honorable discharge issued on
5 November 1990.

The Board, consisting of Messrs.  

2.
Ivins, reviewed Petitioner's allegations of error and injustice
on 6 February 2002 and, pursuant to its regulations, determined
that the corrective action indicated below should be taken on
the available evidence of record.
considered by the Board consisted of the enclosures, naval
records, and applicable statutes, regulations and policies.

Leeman, Rothlein, and

Documentary material

The Board, having reviewed all the facts of record

3.
pertaining to Petitioner's allegations of error and injustice
finds as follows:

a.

Before applying to this Board, Petitioner exhausted all

administrative remedies available under existing law and
regulations within the Department of the Navy.

b.

Although it appears that Petitioner's application to

the Board was not filed in a timely manner, it is in the
interest of justice to waive the statute of limitations and
review the application on its merits.

C .

Petitioner enlisted in the Navy on 23 June 1988 for
The record reflects that he completed
"A" school and was assigned to the

four years at age 18.
Mess Management Specialist
USS GUADALCANAL (LPH 7) on 25 November 1988.

d.

Petitioner was advanced to MSSN (E-3) and served

without incident until 23 March 1990, when he received
nonjudicial punishment (NJP) for disrespect, disobedience of an
order, and communicating a threat.
of a reduction in rate to MSSA (E-2),
$100, and 30 days of restriction and extra duty.

Punishment imposed consisted
a suspended forfeiture of

e.

On 21 October 1990 Petitioner was convicted by summary

court-martial of two specifications of disrespect towards an
officer, nine specifications of disrespect towards a petty
officer, and failure to obey a lawful order.
He was sentenced
to confinement at hard labor for 30 days, a forfeiture of $482,
and reduction in rate to MSSR (E-l).

f.

On the same day, Petitioner was also notified that he

was being considered for discharge under other than honorable
conditions by reason of  
serious offense.
declined to consult with counsel,
present his case to an administrative discharge board (ADB).

mjaconduct due to commission of a
He was advised of his procedural rights,
and waived the right to

g-

On 29 October 1990 the commanding officer (CO)

recommended discharge under other than honorable conditions by
reason of misconduct due to commission of a serious offense. In
his recommendation, the CO stated as follows:

. 

.

He is a major irritant to his division, this

This man is unfit for further Naval service.
he will do whatever necessary to leave the Navy and his
burgeoning disciplinary record evidences this.
flaunts military authority and his conduct borders on
violence.
ship and the Navy and should be removed expeditiously.
unprvductive and requires
Furthermore, he is  
constant supervision to ensure he completes any task.
continued presence on board this ship is detrimental to
command morale and the maintenance of good order and
discipline.

tvtaUy 

His

He has stated

He openly

2

h.

On 30 October 1990 the Commander, Naval Military

Personnel Command directed discharge under other than honorable
conditions by reason of misconduct due to commission of a
serious offense.
1990.

Petitioner was so discharged on 5 November

i.

Medical records obtained from the Department of

However, the particulars of that claim were not part

Veterans Affairs (DVA) indicate that on 28 May 1991, the DVA
considered a claim filed by Petitioner, apparently for
treatment.
of the records provided by the DVA.
The DVA noted that
Petitioner had been discharged under other than honorable
conditions and the offenses which led to his discharge.
noted that there was no available evidence that Petitioner could
not distinguish right from wrong or that he was not conscious of
his acts.
It appears that the DVA concluded that his discharge
was issued under circumstances that prohibited the payment of
benefits administered by the DVA.
was admitted to a VA hospital for evaluation and treatment of
psychotic symptoms on 30 January 1993,
paranoid schizophrenia.

Medical records do show he

and was diagnosed with

It also

j.

On 22 February 1993, the Navy Discharge Review Board

denied Petitioner's request for recharacterization of his
discharge.

k.

On 11 February 1998 this Board denied Petitioner's

application for an upgrade of his discharge.
for reconsideration was accepted based on medical records not
previously available to the Board.

His application

1.

Petitioner now provides statements from individuals
acquainted with his family who witnessed the deterioration of
and.state that his
his mental state subsequent to discharge,  
behavior was far different at the time of discharge than at the
time of enlistment.
hospitalizations during 1998 and 1999 for treatment of his
diagnosed schizophrenia.
8 November 1999, noted that Petitioner was admitted to a VA
hospital for treatment of psychotic symptoms in 1990.
records provided by the DVA contain no documentation of this
treatment.
apparently Petitioner is unable to comply or unable to obtain

Counsel has requested this documentation, but

He provides hospital records of six

The latest psychiatric evaluation, on

However,

3

this documentation from the DVA.
Petitioner was schizophrenic at the time of service and that it
mitigates the misconduct which led to his discharge.

Counsel contends that

m.

At enclosure  

(2), an advisory opinion by the Department

more than two years after his

of Psychiatry, Naval Medical Center, Portsmouth, VA states the
available medical documentation provides no objective medical
evidence of a psychiatric illness until Petitioner's first
hospitalization in January 1993,
discharge.
Had he been hospitalized or treated by a psychia-
trist within a short period of time after discharge this would
suggest that his illness existed prior to separation.
advisory opinion also states that although there were no
psychiatric evaluations in his medical record during his
enlistment, the pattern of behavior described by the commanding
officer in the discharge paperwork could be considered
consistent with Petitioner's current diagnosis and behavior.
However, the opinion concludes that insufficient evidence
exists, to justify a diagnosis of service-connect schizophrenia.

The

CONCLUSION:

inn of all the evidence of record, the

Upon review and considerat-,
Board concludes that Petitioner's request warrants favorable
action.
MSSN and served for 21 months before his first NJP, and there
was a seven month interval between the first and second NJP.
Additionally, his offenses were relatively minor.

the Board notes that he was advanced to

In this regard,

The

DVA's due

there might well have been

However, his failure to respond is not

DVA records indicate that he filed a claim for treatment
sometime during the latter part of 1990 or early 1991.
Board believes that had Petitioner responded to the  
process letter in January 1991,
sufficient evidence to conclude that his  
prior to service.
unusual for individuals suffering from a psychosis.
regard, the Board notes the statement in the advisory opinion to
the effect that in the discharge paperwork, the Petitioner's
commanding officer described a pattern of behavior that could be
considered consistent with schizophrenia.
The Board is aware
that schizophrenia may develop slowly over time, and Petitioner
may have been suffering in the early stages of that disease
toward the end of his service,
record during this period.

as evidenced by his disciplinary

Since there is evidence that

schizophenia  existed

In this

4

Petitioner tried to obtain treatment through the VA in late the
1990 or early 1991, it is not unreasonable for the Board
conclude that he would have been so diagnosed had he followed
through.
disorder mitigates the misconduct which led to his discharge.

Therefore, it is also reasonable to believe that his

Petitioner is not seeking physical disability

Although the advisory opinion concludes that insufficient
evidence exists for a diagnosis of service-connected
schizophrenia,
All he
retirement for which such a finding would be required.
is seeking is an upgraded discharge, and the Board believes such
action is appropriate since he was most probably suffering from
Given the existence of
the very early stages of this disease.
this mitigating factor, along with his period of good service,
the Board concludes that it would be appropriate and just to
recharacterize the other than honorable discharge to a general
discharge.

RECOMMENDATION:

a.

That Petitioner's naval record be corrected by changing

the record to show that he was issued a general discharge on
5 November 1990 by reason  
other than honorable conditions actually issued on that date.
This should include the issuance of a new DD Form 214.

F misconduct vice the discharge under

oL

b.

That this Report of Proceedings be filed in

Petitioner's naval record.

C .

That, upon request, the DVA be informed that

Petitioner's application was received by the Board on 27 April
2000.

It is certified that a quorum was present at the Board's

4.
and that the foregoing is a true and
review and deliberations,
complete record of the Board's proceedings in the above entitled
matter.

-7

+g$-.,~
(. 

ROBERT D. ZSALMAN
Recorder

E.

ALAN 
Acting Recorder

GOLDSMITH

Pursuant to the delegation of authority set out in Section 6

5.
(e) of the revised Procedures of the Board for Correction of
Naval Records (32 Code of Federal Regulations, Section 723.6
(e)) and having assured compliance with its provisions, it is
hereby announced that the foregoing corrective action, taken
under the authority of reference (a),
Board on behalf of the Secretary of the Navy.

has been approved by the

6