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NAVY | DRB | 2005_Navy | ND0500685
Original file (ND0500685.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-HM3, USN
Docket No. ND05-00685

Applicant’s Request
The application for discharge review was received on 20050308. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review. The Applicant designated Disabled American Veterans as the representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20050915. 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 and reason for discharge shall not change. The discharge shall remain General (Under Honorable Conditions) by reason of misconduct due to commission of a serious offense .

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

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

“The incident that occurred creating the discharge that I received was a direct result of an adverse reaction to medications that I received for treatment of major depression. My Service Medical Records and Service Personnel Records reflect honorable service therefore I request the Board to grant this upgrade request.”

Additional issues submitted by Applicant’s representative Disabled American Veterans:

 “Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current General Under Honorable Conditions discharge to Honorable.

The FSM served on active service from December 9, 1993 to December 15, 2000 at which time he was discharged due to Misconduct Due to Commission of an Serious Offense.

The FSM contends the current discharge is improper because the incident that occurred was a direct result of an adverse reaction to medications given for treatment of Major Depression. With that the FSM maintains that these medications prohibited his ability to make sound decisions and inhibited his judgment, tainting the seven years of military service.

This creates a need for a review of the application of the standard, for the Board to determine that the applicant’s discharge was improper. The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted. See, SECNAVIST 5420.174 D, Sect. 407, part 3.

In continuance, the FSM goes onto explain that the problems with his active duty were not derived from his service as the records reflect an above average Sailor. The discrepancies were created by either his psychiatric condition, the medication used to treat this condition, his poor family relations, or a cultivation of all these factors. Due to these circumstances the regulations allow for a grant of an Honorable discharge, as the influence of the outside factors prohibit the use of any sound judgment required to be a productive sailor.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174D.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the applicant. ”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Department of Veterans Affairs, VA Form 21-22, dated February 24, 2005
Record of Medical Assessment, dated November 28, 2000
Report of Medical History, dated November 29, 2000
Medical Officer’s evaluation, North Clinic, Great Lakes, F/U appointment, dated July 26, 2000
Inter-Agency Patient Referral Report, dated June 13, 2000
Medical Officer’s evaluation, Mental Health Department, Great Lakes, dated May 8, 2000
Chorological Record of Medical Care, dated November 21, 2000
Naval Hospital Great Lakes, Mental Health Department, Mental Health Evaluation, dated May 24, 2000 (3 pages)
Medical Officer’s evaluation, Mental Health Department, Great Lakes, dated June 27, 2000
Medical Officer’s evaluation, Mental Health Department, Great Lakes, dated July 14, 2000
Medical Officer’s evaluation, Mental Health Department, Great Lakes, dated June 6, 2000
Medical Officer’s evaluation, Mental Health Department, Great Lakes, dated July 26, 2000
Medical Officer’s evaluation, Mental Health Department, Great Lakes, dated July 21, 2000
Medical Officer’s evaluation, Mental Health Department, Great Lakes, dated September 24, 2000
Chronological Record of Medical Care, dated June 13, 2000
Medical Record, Report of Medical Examination, dated November 29, 2000

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19930519 – 19931208               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19931209             Date of Discharge: 20001215

 Length of Service (years, months, days):

         Active: 07 00 07
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              None

 Age at Entry: 19

 Years Contracted: 4 (43 month extension)

 Education Level: 12                        AFQT: 79

 Highest Rate: HM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.50 (2)             Behavior: 2.00 (4)       OTA: 2.59        (5.0 scale)
 4.0 (2)                           3.8 (2)                  3.9      (4.0 scale)

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal, 9MM Pistol Marksman, Good Conduct Medal, Meritorious Unit Commendation, Navy & Marine Achievement Medal


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

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

 Chronological Listing of Significant Service Events :

990520:  NJP for violation of UCMJ, Article 134 (2 Specs):
 Specification 1: On or about 990505, as a married man, did have wrongful sexual intercourse with a woman other than his wife at his place of residence.
Specification 2: On or about 990505, did at this place of residence wrongfully cohabit with a woman other than his wife.
          Award: Restriction for 45 days, reduction to E-3. No indication of appeal in the record.

000524:  Mental Health Evaluation: Applicant diagnosed Axis I: Major Depression, Single Episode, 296.20 now beginning to resolve, Alcohol Dependency, 303.90 now in partial remission, Axis II: No diagnosis. Recommendations: Applicant was educated as to the diagnostic impression, results of any testing done and recommendations. Applicant was informed of the availability of palliative treatment with medication and decided in favor of pursuing a referral for medical evaluation.

000707:  Applicant’s voluntary statement: Applicant admitted making a false statement to Civilian authorities regarding the source of his injured ankle.
001107:  Applicant notified of intended recommendation for discharge by reason of misconduct due to commission of a serious offense. Applicant notified that if separation is approved, the least favorable characterization of service possible is under other than honorable conditions.
001113:  Request for conditional waiver: Applicant submitted a conditional waiver request. Applicant agreed to waive his right to an administrative discharge board in exchange for a general (under honorable conditions) discharge.
001113:  Applicant advised of rights and having consulted with counsel, elected to the right to submit statements to the Administrative Board and the right to obtain copies of the documents used to support the basis for the separation. The Applicant waived his right to an administrative discharge board.

 001201:  Commanding Officer, Naval Hospital, Great Lakes, recommended approval of the conditional waiver request by the Commander, Naval Training Center, Great Lakes. The CO recommended that the Applicant’s waiver be granted and that the Applicant be discharged with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense. Commanding Officer’s comments: As a matter of discretion, I concluded that punitive measures were not warranted or necessary in this case. However, I also concluded that HN T_’s (Applicant) conduct warrants processing for separation for commission of a serious offense.

001204:  Commander, Naval Training Center, Great Lakes, directed the Applicant's discharge with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense.

001215:  DD-214: Applicant discharged with a 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 20001215 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization general (under honorable conditions). 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).

Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question. No such impropriety or inequity is evident during the Applicant’s enlistment. 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. A general discharge is warranted for behavior not sufficiently meritorious to warrant an honorable discharge. T he Applicant’s service was marred by nonjudicial punishment proceedings for two violations of Article 134 of the UCMJ for wrongful cohabitation and adultery. Furthermore, the Applicant was involved in an incident in which he made a knowingly false statement to civilian police officials. The Applicant intentionally injured himself by cutting his ankle with a knife. He then falsely reported to the police that the injury resulted from an attack by a black male. Under applicable regulations, a violation of UCMJ Article 107, false official statement, or Article 134, adultery, is considered a serious offense. 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. Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service. Relief is not warranted.

 The Applicant and his counsel contend that his misconduct was the result of his medical condition and a negative reaction he had to certain medication. The Applicant bears the burden of establishing his issues through the presentation of substantial and credible evidence. Although the Applicant submitted evidence that corroborates his mental illness, there is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that this medical condition or certain legally prescribed medications caused him to commit misconduct. The Applicant’s statements alone are insufficient to establish his claims. 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. 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 30, dated 7 Nov 00, effective 30 Aug 00 until 24 Jan 01, Article 1910-142 [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

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 107, false official statement or Article 134, adultery.

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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