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NAVY | DRB | 2002_Navy | ND02-01101
Original file (ND02-01101.rtf) Auto-classification: Denied


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

ex-MM3, USN
Docket No. ND02-01101

Applicant’s Request
The application for discharge review, received 020729, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a documentary record discharge review. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030414. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned that the Applicant was improperly discharged under NAVMILPERSMAN, Article 1910-142 due to an administrative error by the separation authority. The NDRB discerned no inequity in the characterization of the Applicant’s service, but did discern an impropriety in the reason for the discharge, and determined that partial relief is warranted. The Board’s vote was unanimous that the character of the service shall not change but 3 to 2 the reason for separation will change. The discharge shall change to: GENERAL (UNDER HONORABLE CONDITIONS)/SECRETARIAL AUTHORITY, authority: NAVMILPERSMAN, Article 1910 – 164, Separation Code of JFF.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. The discharge I received is improper because I received a 30% disability rating from the medical review board to be placed on the TDRL.

2. The discharge I received is improper due to issues regarding my medical well being at the time.

3. I believe I deserve a fully "Honorable" discharge because I served my country well for 5 1/2 years and I deserve the gratitude and college benefits which I have earned.

4. I sacrificed an $8,000 enlistment bonus for the Navy College Fund and I paid the GI Bill and I deserve the right to the college education I have earned.

 5. To whom it may concern:

My name is ( Applicant ) and I am writing this letter because I feel that my discharge of General Under Honorable Conditions should be upgraded to a fully Honorable discharge thereby allowing me to receive all college benefits and the gratitude I deserve for serving my country for five and a half years. I joined the Navy on 05 Feb 96 and attended boot camp in Great Lakes Illinois. I then attended Nuclear Field A School and Naval Nuclear Power School in Orlando, FL. Where I was in the upper half of my class. I was Class Honor man at the Nuclear Prototype in Charleston, SC. And then attended Engineering Laboratory Technician school also in Charleston. I was then stationed in Pearl Harbor Hawaii on the USS San Francisco and immediately left on a western pacific cruise. I was stationed in Hawaii for two years and then went with the USS San Francisco to Portsmouth, VA. To carry out a two year refuel and overhaul at the Norfolk Naval Shipyard. Prior to leaving Hawaii I began to feel a lot different, I just was not myself I didn't want to go out with friends. I was sleeping a lot. I was going into a depression and I didn't realize it. Shortly after arriving in Norfolk, VA. my condition began to get a lot worse. I wasn't sleeping at night. I wasn't eating. It got so bad that I became suicidal. At this point I knew I needed help so I was taken to Portsmouth Naval Hospital via ambulance and eventually admitted into the psychiatric ward. I remained in the psychiatric ward for two months and was then discharged into barracks on base at the hospital. The diagnosis I was given at discharge was schitzophreniform and I was taking medication for this daily. At this point I was awaiting a medical board decision. A few months later my medical board came back and determined that I was going to be medically separated from the Navy with a thirty percent disability rating and placed on the temporary disabled retirement list. Now I was just waiting for my discharge paperwork to go through and I would get to go home to my family in California. I had stopped taking my medication because I didn't think I needed it anymore and I went extremely manic. I was on terminal leave and I ended getting in trouble and I had to go back into the hospital. I spent a month in the hospital and was discharged with another diagnosis of schitzoaffective disorder bipolar type. Now I was facing possible court martial. I ended up having to go to a sanity board at Walter Reid Medical Center where they determined that I should not be held responsible for my actions because of my medical condition at the time. Therefore I did not have to go to a court martial and I should get my medical board. The commanding officer however insisted that I go to no judicial punishment where I was awarded forty five days restriction and forty five days extra duty. I was recommended for an administrative discharge. This meant no medical board no benefits nothing.
I was discharged on 20 July 2001 with a General Under Honorable Conditions discharge. I am now a disabled veteran receiving some compensation from the VA. My goal was to attend college after the Navy yet that is being stripped away from me because my discharge is not "Honorable." I sacrificed an eight thousand dollar enlistment bonus for the Navy College Fund and I paid into the Montgomery G.I. Bill and I believe I've earned the right to a good education. Please be fair and just, help me in my struggle to receive an upgrade of my discharge to a fully "Honorable" so that I may attend college to better my opportunities in the future.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant 's DD Form 214
Letter to congressman, from Applicant , dated April 29, 2002
Letter from congressman, dated May 28, 2002
Letter from Applicant
Medical Board Report, dated June 22, 2000
Medical Board findings, dated September 26, 2000
Receipt of findings, dated October 2, 2000
Informal Board Finding Counseling, signed October 2, 2000
Election of options for preliminary findings of Physical Evaluation Board, dated October 4, 2000

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     950530 - 960204  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 960205               Date of Discharge: 010720

 Length of Service (years, months, days):

         Active: 05 05 16
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4 (24 months extension)

 Education Level: 12                        AFQT: 86

 Highest Rate: MM2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.50 (2)    Behavior: 2.50 (2)                OTA: 3.13

 Military Decorations: None

 Unit/Campaign/Service Awards: GCM, NAM, NEM, SSDR, MUC, PUC

 Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

 Chronological Listing of Significant Service Events :

000509:  Applicant admitted to psychiatric ward. Diagnoses: Axis: schizophreniform disorder (provisional) r/0 MDD with psychotic features, r/o schizoaffective disorder.
000706:  Applicant release from medical.

 001012:  Applicant admitted to psychiatric ward. Diagnosis: Axis: schizoaffective disorder bipolar type.
001012:  Message from COMNAVPERSCOM: The Secretary of the Navy has directed the temporary disability retirement with disability at 30 percent. Release from active duty 29 NOV 00. Retirement effective 30 NOV 00.

001013:  Message from NAVMEDCEN Portsmouth, VA to BUPERS: Request Applicant 's authority for TDRL be held in abeyance pending outcome of criminal investigation by NCIS. Upon completion of investigation charges will be referred for trial by court-martial.
001120:  Applicant discharged to medical hold.

 010208:  Charge Sheet: Violation of the UCMJ, Article 92: Violate a lawful general regulation on 001008, to wit: wrongfully possessing a firearm, throwing stars, and arrows. Violation of the UCMJ, Article 107: False official statement on 001010, to wit: "I do not have any weapons in my vehicle", Violation of the UCMJ, Article 108: Willfully damage the wall in Room 318 by shooting a bullet into the wall, military property of the United States on 001008, violation of the UCMJ, Article 112A (2 specs) (1) Wrongfully use marijuana on 001006, (2) Wrongfully possess some amount of marijuana on 001010, violation of the UCMJ, Article 134: Wrongfully and willfully discharge a firearm on 001008, to wit: a Glock 17 9mm under circumstances such as to endanger human life.
010514:  Psychiatric Evaluation: Sanity Board Evaluation: Clinical diagnosis: Axis I: Schizoaffective disorder, bipolar type, current manic episode, alcohol abuse, cannabis abuse.
010524:  NJP for violation of UCMJ, Article 112A: Wrongfully use marijuana, a controlled substance between January 2001 and March 2001.
         Award: Forfeiture of $787.60 per month for 2 months, restriction and extra duty for 45 days, reduction to MM3. No indication of appeal in the record.
010608:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
010608:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
010608:  Applicant signed a conditional waiver, requesting a general (under honorable conditions), and waiving an administrative discharge board.
010613:  Commanding Officer recommended discharge with a characterization of general (under honorable) conditions by reason of misconduct due drug abuse. Commanding Officer’s comments (verbatim): Enclosure (3) indicates that MM3 ( Applicant ) suffers from a severe mental disease, Schizoaffective Disorder, Bipolar Type. Enclosure (5) demonstrates that MM3 ( Applicant ) was found not mentally responsible for his actions at the time of some previous offenses listed in enclosure (6), although he was found competent to stand trial. The drug abuse charge at issue in this separation action occurred after MM3 ( Applicant ) began a course of treatment, including medication, to treat his disease. At NJP, MM3 ( Applicant ) acknowledged that he was taking his medication and knew the wrongfulness of his actions during the time of the drug abuse incident at issue in this separation action. MM3 ( Applicant 's) mental health treatment team also acknowledged that MM3 ( Applicant 's) was taking his medication, and that there was no issue of his mental responsibility for this drug abuse incident.

         Based on the information contained in enclosure (1) through (6), it is strongly recommended that MM3 ( Applicant ) be discharged from the naval service with a characterization of General Under Honorable Conditions. Such a characterization appropriately addresses the misconduct, but also takes into consideration MM3 ( Applicant 's) severe mental disease.

010711:  Commander, Navy Region, Mid-Atlantic directed the Applicant's discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 010720 with a characterization of general (under honorable conditions) for misconduct due to commission of a serious offense (A). The Board presumed regularity in the conduct of governmental affairs (B). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was equitable but improper (C and D).

The separation authority authorized the Applicant’s discharge with a narrative reason for which he was not notified. The Board voted 3 to 2 that the impropriety warrants an change to the narrative reason for separation. Partial relief is therefore granted on the basis of the impropriety of the discharge.

Issue 1 and 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. The Board is sympathetic to the Applicant’s diagnosed mental disease. Even though he may feel that his mental disease was a contributing factor, it does not mitigate the Applicant’s use of illegal drugs. The offense occurred after the Applicant began a course of treatment, including medication. The Applicant was mentally competent and will be held accountable for his illegal drug use. His service record is marred by award of non-judicial punishment (NJP) thus substantiating the misconduct for which he was administratively processed . An upgrade to honorable conditions would be inappropriate. Relief denied. For the Applicant’s edification, Sailors guilty of illegal drug use normally receive a discharge characterization of under other than honorable conditions.

Issue 3 and 4: The Board has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities as requested in the issue. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. In the Applicant’s case, the Board did not discern an impropriety or inequity which warrants changing the characterization of service to honorable. Furthermore, the Board disagrees with the Applicant’s assertion that his overall service record warrants an honorable discharge. When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service as honorable. A characterization of service of general (under honorable) conditions is warranted when the member’s conduct constitutes a significant departure of that expected of a Sailor. It must be noted that most Sailors serve honorably and well and therefore earn honorable discharges. In fairness to those Sailors, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. Relief denied. Regarding the Applicant’s disability rating, he may petition to the Board of Correction of Naval Records (BCNR) to correct any perceived errors.

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. Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. Evidence of continuing educational pursuits, a positive employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence that the Applicant is living a drug free life style, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.

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 15560C), Change 31, dated 20 Feb 01, effective 25 Jan 01 until 21 Aug 02, Article 1910-142 [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B. 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.

C. 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.

D. 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.

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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