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


FOR OFFICIAL USE ONLY


ex-ISSR, USN
Docket No. ND06-00099

Applicant’s Request

The application for discharge review was received on 20051012. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). 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 20060802. 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 by reason of misconduct due to commission of a serious offense .

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PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application and attached document/letter:

“All information regarding my case was submitted with my first letter last year.”


“Dear sir / Ma’am;

I am submitting this letter with the intention and hopes of changing the status of my discharge given to me by the U.S. Navy. At the present time I have a “Other than honorable” discharge which I feel strongly, with all the facts presented should be changed to a “honorable” or the least a “general” discharge. Here is my story; On March 1st 2001 I joined the Navy and left to boot camp, I like many other’s did suffer some temporary anxiety which I managed to make it through and continued on to “A” School. “A” school was tough in that I had to study hard to make it through, at this time I seemed to be having more anxiety and stress due to the course of studies, I was seen by a couple of doctors because I was “urinating” blood. The doctors response to this matter was that “they had never seen a bladder hemorrhage for no reason at all?? And they did tell me it was probably due to stress. After “A” school I was allowed to take a couple of weeks of leave which I went home to New Mexico. During my stay at home the 911 situation occurred, in which our country was attacked. After a few days I was on my way to the USS Kitty hawk, my ship, which is stationed in Japan. The “kitty hawk” was the first to respond to this war and Immediately left for the Gulf. I must share with you that I have never been on a ship before and with so much ocean To include going off to war was overwhelming for me, and so my stress level was incredibly high. As an Important fact, I was an “Intelligence Specialist” and did my job to the best of my ability during this conflict overseas. During this time I was even presented with a letter of accommodation for doing a outstanding job and was presented to me by the admiral. I was also told there was a medal which I never received for “Operation enduring freedom”. During the 3 months out at sea and during this conflict I suffered a series of stress related illnesses due to anxiety and stress. For example at night during my sleep I was rubbing the skin off my chest without realizing it. I was given anti-depressants drugs and told to wear rubber gloves while sleeping. Again noting that I wasn’t use to being on a ship I really felt enclosed and claustrophobic, which only seemed to make matter’s worse, My attitude did change due to being very depressed. During this time though, I still did not neglect my duties!

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In my records it is noted that I did go UA, which in the eye’s of the U.S. Navy was drastic and wrong, however, I did this due to my stress related condition. Before, I did ask question to my authority like “can I take medical leave due to MY condition? but was denied. Sir / Ma’am, I did not DESERT! After talking with my father who is Retired Air force, I was convinced and built up the courage enough to come back in time. As I was put on “legal hold” in Japan I waited for my ship to return back to port to face charges. As my father recommended I did report to the chaplain Immediately to explain my situation and for help. My ship did return and at this point I ran into a series of disappointing actions by my upper echelon. The Psychiatrist that I talked to did recommend an administration separation, which was denied. During my court martial my first class (LPO) IS 1 D_ recommended before the judge that I be released from service with an “Honorable” discharge, the judge did say he would work on it. I was made to attend another board of officers where they did agree to release me on a pending discharge. All these recommendations were denied by a Captain H_. I still needed help with my condition at this time and I used the chain of command to do so. During my time on liberty risk, brig, and captains mast I followed all direct orders. During my talk with Captain H_ He did tell me of compliments from my division that I was a good sailor. And I was asked and given some options on what I would like to do? I explained to the captain due to the confinement of a ship which was causing me due stress and anxiety I would like to try “shore duty”, in which he denied me, and gave me 60 more days of added restriction. To note, at this time my father was also E-mailing my commander and ship chaplain begging them to keep me in and at least give me shore duty, as to not hurt my career, they never answered him. With the help of my father through numerous e-mails and phone calls to other sources like a chaplain from Washington D.C., and Congresswomen H_ W_, a senior medical officer did sign and recommend a “general under honorable conditions” discharge, in which I also signed. A day later the legal office said they made a mistake and I was made to sign a “Other than honorable” type discharge. As it could be related to this situation Captain H_ was relieved of his command on the USS Kitty hawk.

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Sir I Ma’am, please note all the facts when considering the changing my discharge status. I do feel I deserve an “honorable” or the least a “General” discharge. I did attend a war in “Operation enduring freedom” for 3 months in the gulf and 19 months of active duty which should to amount to something! Another thing to consider is had the U.S. Navy allowed certain options to me I may have finished off my tour in the U.S. Navy. I am only sorry that I couldn’t take the confinements of the ship.

By up grading my discharge you are allowing me better chances at a competitive job market, especially for Federal jobs.

Thank You, Yours N_ L. P_”


“To Whom It May Concern:

This is the second letter I have sent in regards to a discharge upgrade.

My name is N_ P_ and I was an ‘Intelligence Specialist’ in the United States Navy. I was stationed on the U.S.S. Kitty Hawk and was active duty from March 27 ^th 2001 through October 13 ^th 2002. I served in Operation Enduring Freedom, in which I received a Letter of Accommodation and a Foreign War Metal. During this time I enjoyed the Navy, but had a few concerns about my job and what it entailed. I started suffering from depression, and just recently found out it was Generalized Anxiety Disorder in which I am now receiving 30% disability from the VA. Although at the time I was not aware of it I went to the Doctor where I was prescribed an anti-depressant (Zoloft) and was basically “sent on my way.” I went once or twice more to the Doctor and to my First Class and told them I was having a hard time with my depression. I told them I did not know my options because although the anti-depressant were helping I still felt as if I wasn’t doing my job effectively. A few weeks later I went “UA” and stayed with my family for about 23 days. My Chief made contact with me, and asked me to come back. After contact I flew back to Japan. For approximately 2 1/2 to 3 months I stayed in Legal Hold at Yokosuka Naval Base. I saw a psychiatrist during that time and he recommended an Administration Separation for me. When I got back to the ship I was then put on Liberty Risk and I awaited Court Martial. Also during this time I began seeing the ship’s psychiatrist. After a short time I went to Court Martial where I was 7 days, 5 days “good time.” The Judge then spoke to my superiors. After interviewing myself and my superiors about my work performance, he then told me that he was going to recommend an Honorable Discharge due to the fact that I was an exceptional sailor. That is when I believe Captain H_ had a talk with the judge to change his mind. “I will get into that later!” During my short time in the Brig, I went before a Committee of Officers and Higher Enlisted to review my case. They recommended me yet another discharge (Administration Separation) and 2 days later, I was released. After all of these recommended discharges, I went back to my command to find out that I was not going to be separated because the Captain did not think my condition was serious enough. At that time I lost hope and went “UA” again. I was gone for 3 days, and then returned to my command. I awaited Captains Mast for approximately 2 months. When I finally did see the Captain I asked him if I could be assigned a Shore Duty, because I did not want to be discharged completely. I told him that I was on anti-depressants and was scratching all the skin off of my chest since we had gotten back from Operation Enduring Freedom. He then told me that he was not going to discharge me and was not going to assign me Shore Duty either. He sentenced me to 60 days restriction. During this time my parents contacted Congress Women Heather Wilson. The Captain was notified and at the end of my restriction, within 24 hours I was interviewed by the Senior Medical Officer. It was then that another discharge was recommended, but this time the Captain signed it. He was put under Congressional Investigation and I signed a General Discharge. Later the Legal Department tore up my General Discharge and made me sign an “Other than Honorable” discharge. I did not understand why they did this until a week later when the Captain was fired from the Command. Not knowing how serious the situation was, while awaiting my plane ticket to Seattle I was harassed and “Badgered” by not only my Division but other Officers on the ship as well. My plane ticket arrived and the day I was leaving a friend of mine, Seaman P_ (him and I had similar last names) was cornered by 4 Officers that thought he was me. They told him he was lucky because if he was me they would have made him sorry. In short I feel that I was wronged. I was a very good Sailor, and I worked very hard. The Captain made sure to give me the hardest time he could (in every way) on his way out. I’m sure he was upset because I was a big part in why he was relieved of his command. I am asking for a discharge upgrade of at least a “General”, if not an “Honorable Discharge.” Sincerely N_ P_”


Documentation

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

Applicant’s DD Form 214
Extracts from Service Record (13 pgs)
Copy of email from Applicant’s father to Capt T_ H_ Commanding Officer (CV 63 ) dtd August 19, 2002
VA Entitlement Claim (8 pgs), dtd August 29, 2005
Mental Status Examination from USS KITTY HAWK (CV 63) Medical Department dtd August 19, 2002
Mental Status Examination from USS KITTY HAWK (CV 63) Medical Department dtd August 16, 2002
Extracts from Medical Record (37 pgs)
Letter from Applicant dtd March 8, 2006

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PART II - SUMMARY OF SERVICE

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

         Inactive: USNR (DEP)     20010227 – 20010326               COG
         Active: None

Period of Service Under Review :

Date of Enlistment: 20010327             Date of Discharge: 20021010

Length of Service (years, months, days):

         Active: 01 06 14 (Does not exclude lost time.)
         Inactive: None

Time Lost During This Period (days):

         Unauthorized absence: 21 days
         Confinement:              5 days

Age at Entry: 19

Years Contracted: 4

Education Level: 12                                 AFQT: 57

Highest Rate: ISSA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: 2.0 (1)              Behavior: 2.0 (1)                 OTA: 2.00

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal, Flag Letter of Commendation.

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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 :

020409:  Applicant began an unauthorized absence from USS KITTY HAWK (CV 63) at 0730 on 020409.

020415:  Applicant missed ship’s movement.

020503:  Applicant surrendered to military control at 1953 on 020503 (25 days) to CFAY MPHQ. Returned at CFAY, Yokosuka TPU on Class Charlie Liberty Risk. Pending return to parent command.

020517:  Applicant was referred to psychiatry by the emergency room. He went there because of increasing frequency of suicidal thoughts -- had been suffering from depression for 15 months. Medical evaluation by LT J. H_, MSC, USNR, Clinical Psychologist.
         AXIS I: 309.0 Adjustment Disorder with Depressed Mood, Chronic, with suicidal ideation.
         AXIS II: 301.9 Personality Disorder NOS with Avoidant and Borderline Personality Features.
         AXIS III: None.
         AXIS IV: Problems with Social Support.
         AXIS V: GAF =58
         Assessment:
         Plan:
         Recommendation: Recommend the consideration of a routine administrative separation for unsuitability due to the presence of a severe personality disorder per MILPERSMAN 1910-122 and by Reason of Convenience of the Government due to a mental condition (Adjustment Disorder) not constituting a physical disability per DOD Instruction 1332.38 and MILPERSMAN 1910-120. The member is not considered mentally ill and returns to full duty. The member manifest a longstanding disorder of character and behavior that is so severe that the member’s ability to function effectively in the Naval environment is significantly impaired and interferes with the member’s performance of duty. Processing for administrative separation in accordance with MILPERSMAN 1910-122 would require, in addition to this diagnosis, counseling via a NAVPERS 1070/613 Administrative Remarks (MILPERSMAN 1910-200). The member understands that this recommendation is subject to command approval. In the examiner’s opinion, the member does not possess a severe mental disorder and is considered competent for his actions.

         No follow up appointment is necessary at this time, nor was this requested. The patient understands that he may call the clinic at 243-5186 to request a follow up appointment.
        
         The result of this evaluation were shared with the service member. He indicated that he understands and concur with the recommendation outlined above.

020618:  Summary Court-Martial.
         Violation of the UCMJ, Article 86: Unauthorized absence:
         Violation of the UCMJ, Article 87: Missed movement.
         Sentence: 7 days confinement, forfeiture of $385.00 pay per month for 1 month, reduced to E-1.
         CA action 020618: Sentence approved and ordered execute

020624:  Retention Warning: Advised of deficiency (Personality disorder (Adjustment Disorder).), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

020814:  NJP for violation of UCMJ, Article 86: Unauthorized absence for a period of 3 days.
         Award: Forfeiture of $300.00 pay per month for 1 month, restriction and extra duty for 21 days. No indication of appeal in the record.

0208XX:  Medical evaluation by K.M.B_, CDR. MC. USN. Applicant stated "if the navy keeps me in, I will try to kill myself." Applicant contracts for safety and agreed to contact his doctor, chaplain, or someone in his chain of command if he has thoughts of suicide or hurting himself.

020816:  Medical evaluation by LT J. L. G. J_, MSC, USNR, Ship’s Psychologist, USS KITTY HAWK Medical Department:
         AXIS I: 309.28 Adjustment Disorder with Mixed Anxiety and Depressed Mood, R/O Panic Disorder without Agoraphobia.
         AXIS II: 301.9 Personality Disorder with Borderline and Avoidant Features.
         AXIS III: None.
         AXIS IV: Military Duty, lack of social support.
         AXIS V: (current) 55/100 = Moderate symptoms.
         Assessment:
         Plan: Pt advised to practice deep breathing exercises every day, begin studying for advancement, consider taking classes aboard ship, continue speaking with chaplain and family for support. Pt will follow-up SEP @ 1400.
         Severity/Risk: At the present time, this patient is considered competent to be discharged to his own custody. He does not constitute a danger to self or others. The patient understands and accepts the treatment plan.
         Fitness for Duty: Fit for full duty.

020819:  Medical evaluation by LT J. L. G. J_, MSC, USNR, Ship’s Psychologist, USS KITTY HAWK Medical Department:
         AXIS I: 309.28 Adjustment Disorder with Mixed Anxiety and Depressed Mood, R/O Panic Disorder without Agoraphobia.
         AXIS II: 301.9 Personality Disorder with Borderline and Avoidant Features.
         AXIS III: None.
         AXIS IV: Military Duty, lack of social support.
         AXIS V: (current) 55/100 = Moderate symptoms.
         Assessment:
         Plan: After discussion with the SMO and Duty Chaplain, Pt was put on a 1 to 1 suicide watch until his follow up appt. tomorow afternoon. Although the pt has not displayed acute signs of suicide intention, the watch was instituted in light of his parents’ distress as a conservative measure. Pt will follow up with CDR B_ on AUG @1300.
         Severity/Risk: At the present time, this patient is not considered competent to be discharged to his own custody. He currently constitutes a danger to himself. The patient understands and accepts the treatment plan.
         Fitness for Duty: Unfit for duty.

020822:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service under other than honorable conditions by reason of convenience of the government-personality disorder; misconduct pattern of misconduct; and misconduct commission of a serious offense.

020822:  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.

020903:  Commanding Officer, USS KITTY HAWK (CV 63) recommended discharge under other than honorable conditions by reason of convenience of the government-personality disorder; misconduct pattern of misconduct; and misconduct commission of serious offense. Commanding Officer’s comments: “On 17 May 2002, ISSR P_ (Applicant) was psychologically evaluated for depression and intermittent suicidal ideation. His symptoms appeared to be related to chronic difficulty adjusting to life in the Navy and in Japan. LT H_ indicated in his evaluation that ISSR P_ (Applicant) did not meet the criteria of a specific personality disorder and therefore did not satisfy the diagnostic requirements of an expeditious processing for a personality disorder. In LT H_’s opinion the member did not posses a severe mental disorder and was considered competent and responsible for his own actions. ISSR P_ (Applicant) is being processed due to his personality disorder and his misconduct. After his first mental health examination, the accused was given a Page 13 counseled on how to correct his deficiencies. He failed to correct those deficiencies and meets the criteria for a personality disorder separation. Also ISSR P_ (Applicant) committed a pattern of misconduct by his Captain’s Mast and Court Martial and should be processed for separation. Because misconduct was committed and the accused was fully responsible for his actions, he should have discharge characterization of service be Other Than Honorable.”

020913:  GCMCA, Commander, Carrier Group FIVE directed the Applicant's discharge under other than honorable conditions by reason of misconduct commission of a serious offense.

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PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20021010 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 Applicant provided documentation that since his discharge, he has been diagnosed with a service connected generalized anxiety disorder and is receiving compensation from the VA for that condition. The Applicant requests an upgrade in part because his command did not discharge him for his psychiatric conditions earlier. A review of the Applicant's record shows that he did receive a diagnosis of personality disorder and that competent medical authority recommended him for discharge, however, his condition was not considered to be of such a magnitude as to require expeditious separation. The Applicant had already committed the misconduct (missing ship's movement) that formed the basis of his separation. The summary of service clearly documents that misconduct due to commission of a serious offense was the reason the Applicant was discharged. Normally, to permit relief, an error or inequity in the discharge proceedings must have been evident from the documentation. No such error or inequity is evident in this case. The Applicant's separation for misconduct was proper. Relief denied.

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. Relief is not warranted.

The Applicant also requests that the character of his discharge be upgraded to general under honorable conditions. 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’s service was marred by a retention warning, a summary court-martial for violations of Articles 86 and 87, and a nonjudicial punishment proceeding for violating Article 86 of the UCMJ. A violation of UCMJ Article 87, missing movement, is a serious offense for which a punitive discharge is authorized. 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 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 additional evidence related to this 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. 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 87, missing movement.

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