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NAVY | DRB | 2004_Navy | ND04-00186
Original file (ND04-00186.rtf) Auto-classification: Denied


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

ex-HN, USN
Docket No. ND04-00186

Applicant’s Request
The application for discharge review was received on 20031117. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing discharge review before the Board in the Washington National Capital Region. The Applicant listed American Legion as the representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040720. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no 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. However, the reason for discharge, misconduct due to a pattern of misconduct, was found to be improper. Therefore, by unanimous vote by the Board, and since the appropriate reason for discharge was “commission of serious offense, for which processed, the Narrative Reason shall change to MISCONDUCT and the SPN code to GKQ, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. I feel if I would have been properly diagnosed during the last year of my active duty when my problems began I would still be in the navy. I had a stellar career for close to 4 years and enjoyed my work. Depression began to take over my life and I did not understand why I felt so bad. My family was alarmed and tried to get help for me but were unsuccessful.

Additional issues submitted by Applicant’s counsel/representative (AMERICAN LEGION):

 2. Equity Issue: Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.
 _______________________________________________________________________
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 following statement in support of this Applicant’s petition.

Review of the service record reflects that this Applicant maintained satisfactory performance and conduct markings and was issued the GCM, OSM (2) and NDSM. He was awarded a single NJP on 020607 for VUCMJ, Arts. 86, 109, 128. Following due process notifications, he was discharged General (Under Honorable Conditions) due to a pattern for misconduct as authorized by NAVMILPERSMAN, Art. 1910-140.

Essentially, as noted on DD Form 293 and attachments, this Applicant is requesting that his discharge be upgraded because prodronal symptoms of his Bipolar Disorder Type II impaired his ability to serve and was a contributing factor in his alcohol abuse. He has submitted 5 pages of additional documentation: a medical statement from his doctor explaining his condition and treatment and letters from his family elaborating on the problems he encountered during service for consideration.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist and support this former member in resolving any improprieties or inequities in the character and basis for discharge. Moreover, 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:
Copy of DD Form 214
Letter from Foothills Psychiatry dated September 16, 2003
Letter from Applicant’s Parents to Commander L___ Y__-S__ dated May 31, 2002
Letter from Applicant’s mother to Senator C___ dated February 25, 2003
Letter from Applicant’s mother dated February 25, 2003

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     980611 - 980705  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 980706               Date of Discharge: 021104

 Length of Service (years, months, days):

         Active: 04 03 26
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4 (12 months extension)

 Education Level: 12                        AFQT: 82

 Highest Rate: HN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.00 (4)    Behavior: 3.75 (4)                OTA: 3.83

 Military Decorations: None

 Unit/Campaign/Service Awards: GCM, OSM(2), NDSM

Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

 Chronological Listing of Significant Service Events :

020523:  Retention Warning: Advised of deficiency (Violation of Article 109, Property other than military property-waste and destruction; violation of Article 128, Assault-aggravated; violation of Article 86, Unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

020523:  NJP for violation of UCMJ, Article 109: Property other than military property-waste and destruction, violation of UCMJ, Article 128: Assault-aggravated, violation of UCMJ, Article 86: Unauthorized absence.
         Award: Forfeiture of $840.00 pay per month for 2 months, restriction to CFAY for 45 days, extra duty for 45 days, reduction to E-2 (suspended for 6 months). No indication of appeal in the record.

020607:  Retention Warning: Advised of deficiency (Violation of Article 109, Property other than military property-waste and destruction; violation of Article 128, Assault-aggravated; violation of Article 86, Unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

020607:  Reduction in rate suspended at CO’s NJP of 020523 vacated.

 020702:  Narrative Summary of Substance Abuse Treatment: [USE HISTORY: The patient began a regular pattern of drinking at the age of 15, consuming five beers twice a week. The patient was refereed to SARD following his second alcohol-related incident. MEDICAL/PSYCHIATRIC HISTORY: There is no significant history of medical or psychiatric problems. TREATMENT COURSE: The patient was terminated from Intensive Outpatient program on 2 July 2002 due to serious violation of treatment rules and the patient’s request to be terminated against Medical Advice and returned to his command.]
020926:  Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of misconduct due to a pattern of misconduct, commission of a serious offense and alcohol abuse rehabilitation failure.
020926:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

020926:  Commanding Officer recommended discharge general (under honorable conditions) by reason of misconduct due to a pattern of misconduct, commission of a serious offense, and alcohol abuse rehabilitation failure.

021016:  CNMPC directed the Applicant's discharge general (under honorable conditions) by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20021104 general (under honorable conditions) for misconduct due to a pattern of misconduct (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 the reason for discharge was improper (C and D).

The Applicant did not meet the requirements for a discharge based upon a pattern of misconduct as the Applicant was subject to only one nonjudicial punishment proceeding for three violations of Articles of the UCMJ. Since the Applicant was processed for discharge by reason of pattern of misconduct, commission of a serious offense and alcohol rehabilitation failure, the Board found that discharge by reason of misconduct, commission of a serious offense was the appropriate reason for discharge as outlined in (E).

Issue 1. When the service of a member of U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. A General 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 nonjudicial punishment proceedings for three violations of the UCMJ to include violations of Article 86, unauthorized absence, Article 109 for property waste and destruction and Article 128 for aggravated assault. While the Applicant contends that his problems in the Navy can be attributed to his "depression". However, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The Applicant’s statements, submission and the evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. 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. Relief is not warranted.

Issue 2. After a complete review of the entire record, including the evidence submitted by the Applicant, the Board found that the Applicant’s characterization of discharge was appropriate and that his evidence of a post-service diagnosis of Bipolar Disorder Type II was found not to mitigate the conduct for which he was discharged. 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 documentation to support any claims of post-service accomplishments or any other evidence related to his discharge 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), re-issued October 2002, effective 22 Aug 2002 until Present, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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.

 E. Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 02 until Present, Article 1910-142 [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.



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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