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NAVY | DRB | 2004_Navy | ND04-01273

Original file (ND04-01273.rtf) Auto-classification: Denied

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

ex-SR, USN
Docket No. ND04-01273

Applicant’s Request

The application for discharge review was received on 20040809. 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 a traveling panel closest to Norfolk, VA. The Applicant did not list any 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, also advised that the Naval Discharge Review Board (NDRB) does not travel, all hearing are held in the Washington National Capital Region.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041222. 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: UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority: NAVMILPERSMAN, Article 3630650.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application received on 20040809:

“ When I was discharged from the Navy my psychiatrist diagnosed me with Narcissi Mental temper. To be diagnosed with this was the first time I was aware of this problem. The situation was I was caught in the exchange stealing. I was sent to court martial for this and sentenced to 60 days hard labor. I thought that this was a little too extreme for the crime. I had a 2 year old son at the time which made performing extra hard labor not easy one day I felt very depressed, suicidal and needed medical attention, I was refused because I was performing my punishment without knowledge of what I saying or doing. I lost it and was cussing and unrulely. This time they allowed me to go to the doctors and they arrested me when I was done with the doctor. I did 42 days in the brig for communicating a threat. That was 10 year ago.

Now a civilian I have received the proper treatment and diagnosis I have been Bipolar not narcissic mental temper. If I would have had the right diagnosis & medicine I would have been a better person with no problems since being treated, I request that based on this information that my other than honorable discharge be upgraded to honorable.”

Applicant’s issues, as stated on a subsequent application received on 20041006:

“I was caught shoplifting in the Marine Corps Exchange and was arrested and sent to court martial. I was sentenced to 2 pay grades lowered and 60 hard extra labors. I was having problems with the punishment due to having a son and my husband was an active duty marine. My asst supply officer ( LT. R_ G_) then told me that I was not meant to be in the military and started to put me down. I went home and had a breakdown, my husband at the time called my unit to advise that I would not be able to come in the That day. He was told that I need to come in. I went to base medical to see a psychiatrist and I was already under his care, I was diagnosis with narcissi mental temper. No meds just a title. I told the doctor what I was feeling and I felt like killing someone. At that time Security was searching my car and I was arrested and sent to the brig instantly. I was in the brig for 42 days and the day they let me out, I was not charged with anything, I was just left go. I was discharged on 09/03/1997. I have been recently diagnosed since being a civilian with being bi-polar. I am on medication, and have never felt this good in my life before, during or after the military. I feel that the punishment was unrealistic to the crime. I also feel that if I would have been diagnosed correctly I could have been treated and deemed better while I was in the military. I am requesting to have my discharge upgraded to be able to use my GI bill that I put money into, as well as utilize my VA home to buy my children and me a home. My son, which was horn while I was in the military, has been diagnosed ADHD, and depression. I know that this stems from me not having the proper care for my condition. I have taken steps in getting my life back on track and this upgrade is a big part of my life being back on track”

Documentation

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

Copies of DD Form 214 (2)
Letter from U. S. Senator, dtd September 9, 2004
Letter from U.S. Senator, dtd August 23, 2004

PART II - SUMMARY OF SERVICE

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

         Inactive: None
         Active: None

Period of Service Under Review :

Date of Enlistment: 930928               Date of Discharge: 970903

Length of Service (years, months, days):

         Active: 03 11 06
         Inactive: None

Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 40

Highest Rate: SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: 3.60 (1)    Behavior: 3.80 (1)                OTA: 3.60

Military Decorations: None

Unit/Campaign/Service Awards: NDSM, GCA, 0.45 CAL Sharpshooter

Days of Unauthorized Absence: 2

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

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority: NAVMILPERSMAN, Article 3630650.

Chronological Listing of Significant Service Events :

970424: Special Court Martial
         Charge I: violation of the UCMJ, Article 121: On 961215 did steal a black purse, of a value $38.00, the property of the Navy Exchange, Naval Station, San Diego, CA.
         Findings: to Charge I and specification thereunder, guilty.
         Sentence: Hard Labor without confinement for 2 months, reduction to E-1.
         CA 970613: Sentence approved and ordered executed.

970714: Mental Health Evaluation at Branch Medical Clinic, Naval Station, San Diego. Applicant referred to the Mental Health Department after stating that “she may hurt someone”. Diagnosis:
         Axis I: Occupational Problem
         Axis II: Personality Disorder NOS with Antisocial and Narcissistic traits
         Applicant not suicidal or homicidal.
         Recommendation: Strongly recommend expeditious administrative separation based on a personality disorder. Patient is responsible for her actions.

970721: Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 86: Did on or about 970705, without authority, absent herself from her organization, to wit: Naval Station, San Diego, California, and did remain so absent until on or about 970707; violation of the Uniform Code of Military Justice (UCMJ) Article 90: (2 Specifications), Specification 1: Having received a lawful command from Lieutenant R___ C. G___, U.S. Navy, her superior commissioned officer, then know by the said Seaman Recruit C____ to be her superior commissioned officer, to report to her hard labor without confinement without her children, or words to that effect, did at Naval Station, San Diego, California, on or about 970618, willfully disobey the same; Specification 2: Having received a lawful command from Ensign T____ J. B___, U.S. Navy, her superior commissioned officer, then known by the said Seaman Recruit C____ to be her superior commissioned officer, to report to her hard labor without confinement without her children, or words to that effect, did at Naval Station, San Diego, California, on or about 970618, willfully disobey the same; ; violation of the Uniform Code of Military Justice (UCMJ) Article 107: (2 Specifications), Specification 1: On or about 970705, with intent to deceive, make to Mess Management Specialist Chief A____ G. L___, U.S. Navy, an official statement, to wit: That the Naval Station, Command Duty Officer approved her request not to perform her hard labor duties due to her child’s illness, or words to that effect, which statement was totally false, and was then known by the said Seaman Recruit C___ to be so false, Specification 2: On or about 970709, with intent to deceive, sign an official document, to wit: NAVCOMPT Form 3065, Leave Request/Authorization, which document was false in that her son was not scheduled for surgery to have a hernia removed, and was then known by the said Seaman Recruit C___ to be so false; violation of the Uniform Code of Military Justice (UCMJ) Article 134: On or about 970714, wrongfully communicate a threat to Lieutenant E__ P___, Medical Service Corps, U.S. Naval Reserve, a threat of possibly hurting Lieutenant R___ C. G___, U.S. Navy, and that she, the said Seaman Recruit C___, had a gun and many knives at home and was not sure what would happen if she saw Lieutenant G___ again.

970729: Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial. She consulted with counsel and was fully advised of the implications of his request. The Applicant stated she understood the elements of the offense(s) with which she was charged, and admitted she was guilty of all the charges preferred against her. Specifically, she admitted to violating UCMJ, Article: 86 and 90. The Applicant stated she was completely satisfied with the counsel she had received. The Applicant understood that if discharged under other than honorable conditions, it might deprive her of virtually all veterans' benefits based upon her current enlistment, and that she 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.

970826: The Commanding Officer, exercising GCMCA, approved the request for an administrative separation in lieu of a trial by court-martial, and directed Applicant’s discharge.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19970903 under other than honorable conditions in lieu of a trial by court-martial (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 proper and equitable (C and D).

The Board found no indication from the service record and documentation provided by the Applicant that she was denied proper medical care while on active duty. The Applicant was diagnosed with a personality disorder by a competent medical authority on 19970714. On 19970729, the Applicant requested discharge for the good of the service to escape trial by court-martial. In the request for discharge, the Applicant noted that her counsel had fully explained the elements of the offenses for which she was charged and that she was guilty of the offenses. She further certified a complete understanding of the negative consequences of her actions and that characterization of service would be under other than honorable conditions. While she may feel that her medical condition and perceived lack of treatment was a factor that contributed to her actions, the record clearly reflects her disregard for the requirements of military discipline and demonstrated that she was unfit for further service. The evidence of record does not demonstrate that the Applicant was not responsible for her conduct or that she should not be held accountable

When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. An Under Other Than Honorable Conditions 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 was found guilty by a special court-martial of violating Articles 121 of the UCMJ. The Applicant requested separation on lieu of trial by court martial when charges of violating Articles 86, 90 (2 specs), 107 (2 specs), and 134 of the UCMJ. The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her contract with the U.S. Navy and falls far short of that required for an upgrade of her characterization of service. Relief is not warranted.

The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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 naval service. The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided any documentation for the Board to consider. 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 her 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), Change 14, effective
03 Oct 96 until 11 Dec 97, Article 3630650, PROCEDURES FOR PROCESSING ENLISTED PERSONNEL FOR SEPARATION IN LIEU OF TRIAL BY COURTMARTIAL.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .

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 “ http://Boards.law.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:

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

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NAVY | DRB | 2004_Navy | ND04-01273

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