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NAVY | DRB | 2005_Navy | ND0500873
Original file (ND0500873.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-SHSR, USN
Docket No. ND05-00873

Applicant’s Request
The application for discharge review was received on 20050425. 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 did not designate a representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20050819 . 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 Under Other Than 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 and attached document/letter:

“To whom it may concern:

I served two years in the Navy March 2001 - February 2003 . I have been diagnosed with bi-polar mental illness since I have been home . I believe my problem began shortly after boot camp and was not addressed properly while I was in the Navy and ultimately led to behavior that caused my less than honorable discharge.

Friends and family noticed the change in my personality and severe depression while I was on my first leave . At Christmas 2002 my depression continued . My mother drove me to Great Lakes Hosp . on the NTC . I saw a doctor there but I was given the run around . I was told once I got back to Virginia I would get help . When I got to Virginia I did receive the same run around . I returned to duty and my depression continued . I was never given proper treatment . With all the non treatment I have received at that time I could of always had bi-polar mental illness, which I was told recently that I do have this illness . My mother contacted the ship’s Chaplain G_ because of her concern for me . For two years I received good reviews and served my country honorably . I asked to remain in the Navy until the end of my duty but I could not stay and was given a less than honorable discharge . I was kicked out of the Navy with an OTH because I stole a good amount of cigarettes . I knew my actions were wrong . I had money taken away for my mistake and did serve brig time . Going back to not being treated for having bi-polar, I did serve a total of two years on the US GEORGE WASHINGTON and served in combat time between June-December 2002 . I am seeking a change in my discharge to honorable so I may continue receiving medical benefits for my on going treatment.

S _ , B _ (Applicant) SS # (deleted) ”
Documentation
In addition to the service and medical record, the following additional documentation, submitted by the Applicant, was considered:
115 pages from Applicant’s service and medical record
Letter from Alexian Brothers Behavioral Health Hospital, dated March 16, 2004 (2)
Five pages of progress notes from Alexian Brothers Behavioral Health Hospital
 Character reference ltr from B_ M_, undated
Character reference ltr from E_ M_, dtd May 15, 2004
Thank you note from K_ N_ and J_ R_, undated
Character reference ltr from R_ D_, undated
Character reference ltr from L_ L_, dtd May 17, 2004
Character reference ltr from J_ O_, dtd May 18, 2004

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20010212 - 20010311               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20010312             Date of Discharge: 20030224

 Length of Service (years, months, days):

         Active: 01 11 13                           (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):

         Unauthorized absence: None
         Confinement:              25 days

 Age at Entry: 20

 Years Contracted: 4 (12 month extension)

 Education Level: 12                                 AFQT: 48

 Highest Rate: SHSN

 Final Enlisted Performance Evaluation Averages (number of marks):*

 Performance: 3.0 (2)              Behavior: 2.5 (2)                 OTA: 2.58

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214) : Sea Service Deployment Ribbon, Armed Forces Expeditionary Medal
*Extracted from supporting documents provided by the Applicant.

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

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


Chronological Listing of Significant Service Events

 :

020918:  Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 81: Steal 10 cartons of cigarettes and Article 121: Steal 40 cartons of cigarettes.

020921:  Charges referred to summary court-martial.

020924:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 81:
         Specification: Conspiracy to commit larceny of 40 cartons of cigarettes, military property, on or about June 2002.
         Charge II: violation of the UCMJ, Article 121:
          Specification: Larceny of 40 cartons of cigarettes, military property, of a value of about $1,200.00, on or about June 2002.
         Finding: to Charge I and the specification thereunder, guilty, except for the word “40” and substituting therefore the word “10.” To Charge II, guilty.
          Sentence: Forfeiture of $736.00, confinement for 30 days, reduced to E-1.
         CA action 020928: Sentence approved and ordered executed.
        
020923:  Applicant to confinement.
021017:  Applicant from confinement. EAOS changed to 05Apr05. (25 days) [Extracted from supporting documents provided by the Applicant.]
021111:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as other than honorable by reason of commission of a serious offense evidenced by your summary court-martial on 24 September 2002, for violation of the Uniform Code of Military Justice; Article 121, larceny of 40 cartons of cigarettes, military property, of a value of about $1,200.00 on or about June 2002.
021111:  Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.
030125:  Applicant submitted a conditional waiver of his administrative board for a general (under honorable conditions) discharge.
030125:  Commanding Officer denied Applicant’s request for a general (under honorable conditions) discharge in lieu of an administrative board. [Document was dated 020125 and presumed to be an administrative error]


030125:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to commission of a serious offense, that such misconduct warranted separation, and recommended discharge with a under other than honorable conditions.
030202:  Commanding Officer, USS GEORGE WASHINGTON (CVN 73), recommended discharge with a under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by Applicant’s summary court-martial on 020924. Commanding Officer’s comments: “SHSR S_ (Applicant) displayed total disregard for his shipmates and betrayed the trust bestowed upon him as a ship store keeper by stealing several cartons of cigarettes while working in the vending operation’s division of the Supply Department on board GEORGE WASHINGTON. His betrayal ended in his Summary Court-Martial conviction. He was subsequently processed for administrative separation where a board elected by a vote of three to zero to discharge him with an Other Than Honorable discharge. His behavior is not compatible with the good order and discipline of the service. Counsel for the Respondent elected to submit a letter of deficiency however to date we have not received any correspondence. I agree with the Administrative Board and recommend that (Applicant) be separated from the Naval service with an Other than Honorable discharge.”

030212:  COMGRUDESGRU TWO, directed the Applicant's discharge with a under other than honorable conditions by reason of commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20030224 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of under other than 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). The Board presumed regularity in the conduct of governmental affairs (E).

 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’s service was marred by a summary court martial conviction for violating Articles 81 and 121 of the UCMJ. The Applicant’s violation of Article 121 of the UCMJ is considered the commission of 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 and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

The Applicant states his current diagnosis of bi-polar disorder indicates that he may have had the same condition while serving in the Navy and that he was suffering from depression during his enlistment. The Applicant implies that, while he knew his actions were wrong, his medical condition should mitigate his misconduct. 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. The NDRB generally does not consider the circumstances surrounding the Applicant’s stated condition, the implied incorrect diagnosis, nor the medical treatment given to 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 medical condition. Therefore, the NDRB considered the Applicant’s discharge proper and equitable. Relief denied.

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 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 sufficient post-service documentation for the Board to consider. 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 enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

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), 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.

B. Under the UCMJ, adjudgment of a punitive discharge for conviction by a special or general court-martial for violation of Article 121, larceny of military property, is authorized.

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 .

 E. 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.


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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