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NAVY | DRB | 2005_Navy | ND0500796
Original file (ND0500796.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-SR, USN
Docket No. ND05-00796

Applicant’s Request
The application for discharge review was received on 20050413. The Applicant requests his characterization of service received at the time of discharge changed to honorable. The Applicant requests a documentary record discharge review. The Applicant listed a member of Congress as his representative on the DD Form 293. In the acknowledgement letter to the Applicant, he was informed that members of Congress do not represent Applicants before the Board and that written authorization must be obtained from that Congressman. Such authorization was not received; therefore the case was reviewed without representation.
Decision

A documentary discharge review was conducted in Washington, D.C. on 20051006. After a thorough review of all available record, 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 characterization of the discharge shall not change. The discharge shall remain General (Under Honorable Conditions) by reason of misconduct due to a pattern of misconduct .

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“Respectfully request an upgrade from general (under honorable conditions) to honorable discharge. I suffered a bi-polar disorder break while in submarine service. I was placed on LIMDU to be further assessed. I was discharged for a pattern of behavior characteristic to my current disability, diagnosed by the VA Hospital in Danville Illinois. The Naval Hospital in Bremerton Washington diagnosed me and failed to treat me properly they refused to give me MEDS. As a result my behavior seemed bizarre, and I was discharged for a pattern of misbehavior, that was beyond my control. They cleared me “Fit for full duty” and I was discharged within the week. Less than 1 week after I was discharged the VA Hospital diagnosed and treated the condition, and my behavior improved a great deal. I have PTSD from submarines, from submarines as well. I have seen many doctors and taken a lot of medicine. One day when I recover I would like to finish college, and possibly return to the work force. I have studied some law and business. Thank you for considering my discharge shipmates”.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (2)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20000316 – 20000607                       
Active: None
Period of Service Under Review :
Date of Enlistment: 20000608             Date of Discharge: 20010807

 Length of Service (years, months, days):

         Active: 01 02 00
         Inactive: None

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

 Age at Entry: 18

Years Contracted: 4 (12 month extension)

 Education Level: 12                                 AFQT: 55

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.0 (2)              Behavior: 2.5 (2)                 OTA: 2 .91

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Navy “E” Ribbon.


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

GENERAL (UNDER HONORABLE CONDITIONS)/ PATTERN OF MISCONDUCT, authority: MILPERSMAN, Article 1910-140 (formerly 3630600).
Chronological Listing of Significant Service Events :

001101:  Reported aboard SSBN 728 Florida Gold crew.

010126:  Transfer to Transient Personnel Unit (TPU) in limited duty status.

010428:  Charged with underage drinking and disorderly conduct.

010511:  Retention Warning: Advised of deficiency (CO’s NJP held on 11 May 2001, for violation of the UCMJ, Article 134 underage drinking, drunk and disorderly), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 010511:  NJP for violation of UCMJ, Article 134: Underage drinking; disorderly conduct.
         Award: Forfeiture of $521 per month for 2 months (suspended for six months), restriction for 45 days, reduction to E-1. No indication of appeal in the record.

010715:  Documentation of completion of Level III in patient alcohol treatment completion in remarks of evaluation report.

010716:  Charged with underage drinking, disorderly conduct, and resisting apprehension.

010720:  NJP for violation of UCMJ, Article 95: Resisting apprehension.
 Violation of UCMJ, Article 134: Underage drinking; disorderly conduct.
          Award: Forfeiture of $521 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
010724:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct pattern of misconduct and by reason of misconduct alcohol rehabilitation failure.
010724:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

010910:  Commanding Officer, Naval Submarine Base Bangor advising CNPC of applicant’s administrative separation with a general under honorable conditions by reason of misconduct pattern of misconduct and alcohol rehabilitation failure. Commanding Officer’s comments: “SR B_ (Applicant), is either incapable or unwilling to conform to the minimum standards of conduct expected of members of the Naval service. His continued misconduct made him a burden to my command and the Navy. Per reference (a) MILPERSMAN 1910-140 and (b) MILPERSMAN 1910-152, I separated SR B_ (Applicant) from the Naval service on 7 August 2001, by reason of misconduct due to a pattern of misconduct and misconduct due to alcohol rehabilitation failure. The characterization of discharge was General (Under Honorable Conditions)”.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20010807 by reason of misconduct due to a pattern of misconduct (A) with a service characterization of general (under honorable conditions). After a thorough review of all available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).

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 (under 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’s service was marred by two nonjudicial punishment proceedings for violations of UCMJ Article 134 (underage drinking, drunk and disorderly) and Article 95 (resisting apprehension). A pattern of misconduct, the reason for the Applicant’s discharge, is defined as more than one nonjudicial punishment during a single enlistment. Separation under these conditions generally result in a less than honorable characterization of service. The Board could discern no impropriety or inequity and therefore considered the discharge proper and equitable. The Applicant’s conduct, which forms the primary basis for determining the characterization of service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls short of that required for an upgrade to the characterization of service. Relief is not warranted.

The Applicant contends that he was not responsible for his behavior because he is bi-polar and was improperly diagnosed and treated. When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline. Nevertheless, the Applicant bears the burden of presenting substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence to support his contentions. The NDRB does not consider the Applicant’s stated condition, the implied incorrect diagnosis, or the medical treatment given the Applicant to be of sufficient nature to exculpate the Applicant’s misconduct. In fact, the NDRB sees no connection between the Applicant’s misconduct and his alleged medical condition. The record clearly reflects his willful misconduct, demonstrating he was unfit for further service. 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. Relief denied.

The Veterans Administration determines eligibility for post-service benefits not the Naval 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 providing healthcare, educational benefits or enhancing employment opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. The Applicant’s issue is without merit. Relief denied.

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 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. The Applicant submitted no documentation.

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), Change 18, effective
12 Dec 1997 until 21 Aug 2002, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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

C. 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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