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NAVY | DRB | 2003_Navy | ND03-01197
Original file (ND03-01197.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND03-01197

Applicant’s Request
The application for discharge review was received on 20030702. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requests a personal appearance hearing before the board in the Washington National Capital Region. The Applicant listed the American Legion as the representative on the DD Form 293. The Applicant failed to respond by the deadline date to a letter requiring the Applicant to notify the Naval Discharge Review Board of intention to be present for the requested personal appearance hearing. Therefore, a documentary review was conducted and the Applicant in not eligible for further review by this Board.
Decision

A documentary discharge review was conducted in Washington, D.C. on 20040812. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain: BAD CONDUCT/Convicted by special court martial, authority: NAVMILPERSMAN, Article 3640420.






PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated
Applicant’s issues, as stated on the application:

1. “I Feel my discharge warrants clemency as it is an injustice for me to suffer with the stigma of a less than honorable discharge especially coming from a military family background.

Psychriatric problems impaired my ability to serve. I have been correctly diagnosed as Bi-Polar I/II and confirmed as a sufferer for my entire adult life. Obvious symptoms were present for example mood/behavioral difficulties, sleep problems and suicide attempts. This was incorrectly diagnosed as ADHD.

The use of alcohol in order to self medicate my condition impaired my ability to serve.

I tried to serve and had a desire to succeed however my psychriatric problems meant I was unable to do so.

Overall I believe that my psychriatric impairment coupled with my youth and immaturity further reduced my ability to serve and meant that I was not qualified to serve.

For ease of reviewing, the documents I have highlighted areas that are directly connected with these issues. Also I have correlated examples form my psychriatric records with my navy records to further support these issues.”

 Issues submitted by Applicant’s representative The American Legion:

 2. “Equity Issue: Pursuant to 10 USC 874 (b) (UCMJ, Article 74) and in accordance with SECNAVINST 5420.174C, enclosure (1), paragraphs 2.24 and 9.3, we request on this former member behalf that the Board grant clemency relief with an up-grade of his characterization of service on the basis of his psychiatric disorder.
 _________________________________________________________________
In accordance with 32 C.F.R., section 724.166, and SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement in supplement to this Applicant’s petition.

Review of the service record reflects that this former member was awarded NJP for on 860821 for VUCMJ, Art. 92; NJP on 861203 for VUCMJ, Arts. 91 (2 specs), 121, 128, 134; NJP on 870516 for VUCMJ, Arts. 117, 134; NJP on 870522 for VUCMJ, Art. 90; NJP on 871005 for VUCMJ, Art. 92; convicted by SPCM on 880624 for VUCMJ, Arts. 91 (2 specs) 134 and SPCM on 880725 for VUCMJ, Art. 91 (4 specs). Following approval of the convening authority and affirmation of the USNMCMR, he was separated with a Bad Conduct discharge due to conviction by special court martial as authorized by NAVMILPERSMAN, Art. 3640420.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because prodronal symptoms of his current his psychiatric condition contributed to his in service misconduct. In support of his contention, he has submitted a professional medical statement, dated 020220, from his treating psychiatrist indicating, in substance, that the Applicant “most likely” had symptoms of Bipolar Disorder in service and that it was a contributing factor in his misconduct. The doctor has also tabbed and highlighted the portions of the service and medical records that support the opinion for the Board’s consideration.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised. To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553, and set forth in 32 C.F.R., part 724 and SECNAVINST 5420.174C, enclosure (1).

This case is now respectfully submitted for deliberation and disposition. ”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from Dr. S_ D_ dated 20 February 2002
Copy of Military Medical Records

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     860415 - 860420  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 860421               Date of Discharge: 890725

 Length of Service (years, months, days):

         Active: 02 11 15
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 60

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.20(1)     Behavior: 2.90 (2)                OTA: 3.12

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: None

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

BAD CONDUCT/Convicted by special court martial, authority: NAVMILPERSMAN, Article 3640420.

 Chronological Listing of Significant Service Events :

860821:  NJP for violation of UCMJ, Article 92: Failure to obey order or regulation.
         Award: Forfeiture of $372 per month for 2 months, restriction and extra duty for 20 days, reduction to E-2. No indication of appeal in the record.

860821:  Retention Warning: Advised of deficiency (F ailure to obey lawful order or regulation ), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

861204:  NJP for violation of UCMJ, Article 91: Willful disobedience of a Petty Officer (2 specs), violation of UCMJ Article 121: Larceny, violation of UCMJ Article 128: Assault; violation of UCMJ Article 134: Communicating a threat.
         Award: Correctional Custody for a period of 30 days. No indication of appeal in the record.
870516:  NJP for violation of UCMJ, Article 91: Willful disobedience of a Petty Officer, violation of UCMJ Article 117: Provoking words, violation of UCMJ Article 134: Communicating a threat.
         Award: Forfeiture of $200 per month for 2 months, restriction for 30 days, reduction to E-1. No indication of appeal in the record.
870529:  NJP for violation of UCMJ, Article 90: Willfully disobey a superior commissioned officer.
         Award: Oral reprimand, restriction 30 days. No indication of appeal in the record.
871005:  NJP for violation of UCMJ, Article 92: Disobedience of a lawful written order.
         Award: Forfeiture of $150 per month for 2 months. No indication of appeal in the record.
871120:  NJP for violation of UCMJ, Article 134: Unspecified charge.
         Award: Restriction for 30 days. No indication of appeal in the record.

880427:  Special Court Martial [trial dates 880427]
         Charge I: violation of the UCMJ, Article 91, 2 Specifications.
         Specification 1: Disobey order of Petty Officer on 26 Feb 88
         Specification 2: Disrespect to Petty Officer on 26 Feb 88
         Charge II: violation of UCMJ, Article 134.
         Specification: Improper Uniform on 18 Feb 88
 Findings: to Charge I and specifications 1 and 2 thereunder, guilty. Charge II and the sole specification thereunder, guilty.
          Sentence: CHL for 90 days, forfeiture of $400 per month for 2 months.

880725:  Special Court Martial [trial dates 880725]
         Charge I: violation of the UCMJ, Article 91, 4 Specifications.
         Specification 1: Disrespect to a Petty Officer on 14 Jun 88
         Specification 2: Failed to obey an order of a Petty Officer on 20 Jun 88
         Specification 3: Failed to obey an order of a Petty Officer on 20 Jun 88
         Specification 4: Disrespect to a Petty Officer on 23 Jun 88
         Charge II: violation of the UCMJ, Article 134, 2 Specifications.
         Specification 1: Communicate a threat on 23 Jun 88
         Specification 2: Concealed weapon on 23 Jun 88
         Findings: to Charge I and specifications 1, 2, and 3 thereunder, guilty. To Charge I guilty. Specification 4 of Charge I was withdrawn by the Convening Authority. To Charge II and specifications 1 and 2 thereunder, not guilty.
         Sentence: CHL for 60days, forfeiture of $447 per month for 2 months, Bad Conduct discharge.
         CA 881012: Sentence approved and ordered executed, except for bad conduct discharge.
         SA: see SSPCMO.
890213:  NMCCMR: The findings of guilty and sentence, as approved on review, are affirmed.
890725:  SSPCMO: Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19890725 with a bad conduct discharge which was the sentence adjudged by a properly convened special court-martial. That sentence was subsequently approved by both the convening and appellate review authorities (A and (B). The Board presumed regularity in the conduct of governmental affairs (C).

Issue 1: In response to the Applicant’s issue, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. With respect to a discharge adjudged by a court-martial case, 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. After a thorough review of the Applicant’s record, issues submitted, and post service accomplishments, the Board determined that clemency was not warranted.

Issue 2: The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The NDRB found the evidence of record did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded. The record contains evidence that Applicant’s record is marred by repeated nonjudicial punishments, two special court-martial convictions, and a Bad Conduct discharge. Medical records submitted by Applicant contain further evidence of post-service misconduct, including an apparent conviction for grand theft auto and a resulting two-year prison term. Nothing in the record suggests Applicant’s service was inequitably characterized given the sheer volume and extent of his misconduct. Likewise, Applicant has not provided this Board any evidence to suggest he may be eligible for clemency based upon exemplary post service conduct. Relief denied.

Applicant contends that the Navy misdiagnosed him as suffering from attention deficit hyperactivity disorder (ADHD) when he was in fact Bipolar. Applicant further contends that this misdiagnosis led to alcohol abuse in an effort to self-medicate his symptoms and substantially impaired his ability to serve in the armed forces. A review of Applicant’s records reveal that at the time of his service, he was diagnosed by competent Navy authority as ADHD, but he was also recommended for continued Naval service without adverse effects on his career. Since his discharge, he has been diagnosed as Bipolar by a civilian psychiatrist, Dr. S_ D_. Dr. D_ includes the opinion that “[m]ostly likely, [Applicant] has had the same problem while in the military…”. The Board finds this evidence unpersuasive. There is a presumption of regularity in the conduct of governmental affairs. As such, this Board presumes that the diagnosis of Navy professionals, while Applicant was on active duty was in fact correct and that his condition had no effect on his career. Relief denied.

 The following is provided for the edification of the Applicant. The NDRB has no authority to provided additional review of this case since Applicant’s discharge occurred more than 15 years ago. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

 A . The Naval Military Personnel Manual, (NAVPERS 15560A), effective 15 Jun 87 until 13 Dec 89, Article 3640420, DISCHARGE OF ENLISTED PERSONNEL ADJUDGED BY SENTENCE OF COURTMARTIAL.

 B. 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 92 – disobedience of a lawful written order.

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.



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 D.C. 20374-5023    


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