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


FOR OFFICIAL USE ONLY


ex-CTISN, USN
Docket No. ND06-00125

Applicant’s Request

The application for discharge review was received on 20051027. 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 200608 25 . 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 General (Under Honorable Conditions) by reason of misconduct due to minor disciplinary infractions .

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PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the attached letter:

“When I signed my discharge papers in the summer of 2004, I was under duress and not in complete control of my situation. I was scared, having just been discharged from the psychiatric ward of the hospital at Lakeland AFB, and was newly on lithium, a psychiatric drug with the documented side effects of cognitive slowing and memory impairment.

I was told at the time that my signing the paperwork for a general discharge was the best thing for me. The Command Master Chief of the Medina Naval Detachment promised me that this discharge would allow me to keep my Navy College Fund, as per my enlistment agreement, because I had served over 3 years. This discharge would also allow me to be released in time to participate in the fall semester at my local college, where as holding out for the medical discharge I felt I was eligible for would prolong my stay 6 months to a year.

I take full responsibility for my actions while in the military. But I believe that I was pushed into signing the papers for a general discharge under honorable circumstances because it was what my command wanted and not because it was actually what I deserved.

Since my discharge a little over a year ago, I have been under the care of a psychiatrist and stabilized on the correct medication. I have been accepted at the University of California with a 3.0 GPA. I have been approved by Veteran’s Affairs for 50% disability due to my mental illness. And I have had no legal or disciplinary problems and no sign of my prior behaviors that led to my hospitalization.

An upgraded discharge will allow me to pursue my degree at the University. Having been found disabled, I believe that my discharge should have been medical rather than general and should be changed.

[signed ] (Applicant) ”

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 the request for a discharge upgrade of the current General, Under Honorable Conditions discharge to Honorable.

The FSM served on active service from August 22, 2000 to May 25, 2004 at which time she was discharged due to misconduct.

The FSM makes her contentions on application and shares her belief that she was under duress and not incomplete control due to the recent discharge from a Psychiatric Ward and the medication provided just prior to of Lithium. It is known that this medication has some very harsh side-effects and will cause some cognitive dysfunction. It is believed that consideration may not have been given to the three years of good conduct service and that if it had an Honorable discharge would have been more appropriate, when considering the two minor acts in combination with the mental health condition.

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.

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 believe that insufficient consideration is shown in regards to the applicant’s character. A summary of this individual’s character and skill during and after their discharge is represented by the statements provided by those who have known and still know the applicant. It is because of this that we maintain that the current character of discharge is to harsh when compared to the overall record of service and an Honorable discharge would more appropriately reflect the quality of service as shown by the record.

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.

Respectfully, ”

Documentation

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

Applicant’s DD Form 214 (Service 2)
Department of Veterans Affairs Record (3 pages)
Welcome letter from University of California Riverside, Office of Undergraduate Admissions, dtd May 12, 2005
Ltr from General Psychiatry, Diplomate, American Board of Psychiatry & Neurology, K_ T_ MD, dtd May 13, 2005

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PART II - SUMMARY OF SERVICE

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

         Inactive: USNR (DEP)     20000728 - 20000821      COG
         Active: None

Period of Service Under Review :

Date of Enlistment: 20000822             Date of Discharge: 20040525

Length of Service (years, months, days):

         Active: 03 09 04
         Inactive: None

Time Lost During This Period (days):

         Unauthorized absence: None
         Confinement:              None

Age at Entry: 18

Years Contracted: 4 (24-month extension)

Education Level: 12                        AFQT: 74

Highest Rate: CTI3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: NA*                           Behavior: NA*                      OTA: NA*

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

* Not Available

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

GENERAL (UNDER HONORABLE CONDITIONS)/ MISCONDUCT, authority: MILPERSMAN, Article 1910-138 (formerly 3630615).

Chronological Listing of Significant Service Events :

030915:  Retention Warning: Counseled for deficiencies in performance and conduct. [Failure to appear at appointed place and time of duty a violation of a lawful order.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

031219:  NJP for violation of UCMJ, Article 92 (2 Specifications): Failure to obey a lawful order or regulation.
Specification 1: In that W_, L_ (Applicant) Cryptologic Technician Interpretive Third Class Petty Officer, USN, on active duty at NSGA MEDINA, on or about, 01SEP03-30NOV03, was derelict in the performance of duties in that she negligently failed to complete required 3 mandatory Fitness Enhancement Program weekly as was her duty to do.
Specification 2: In that W_, L_ (Applicant) Cryptologic Technician Interpretive Third Class Petty Officer, USN, on active duty at NSGA MEDINA, on or about, 26NOV03, was derelict in the performance of duties in that she negligently failed to complete required AFI 32-6005 (Barracks instruction) in failing to keep her room in standards and smoking inside her room.
         Award: Reduction to E-3 (suspended for six months). No indication of appeal in the record.

040512:  Suspended sentence awarded at NJP on 19 Dec 03 was vacated.

040512:  Administrative Remarks: This is to document your continued minor disciplinary infractions, in particular two violations of Article 92, UCMJ by (1) continuing to fail to fulfill your military responsibilities in regards to mandatory Fitness Enhancement Program on five occasions during 1-21 March 2004 and (2) on 5 March, driving a motor vehicle without a valid license after being ordered to correct the deficiency. Also, Article 86, whereby on three occasions you were unauthorized absent from your appointed placed of duty by arriving late for work on 13 January, 1 February and 19 February 2004.
         The command will utilize these violations and your previous two disciplinary infractions of failing to obey orders to attend the mandatory FEP sessions and by violating an order against smoking in your barracks room, as evidenced by your non-judicial punishment of 19 December 2003, as a basis to proceed with Administrative Separation under MILPERSMAN Article 1910-138.

040513:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct – minor disciplinary infractions.

040513:  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.

040514:  Commanding Officer, Naval Security Group Activity , granted authority to Officer in Charge, Personnel Support Detachment, to discharge the Applicant with a general (under honorable conditions) by reason of convenience of the government – m isconduct – minor disciplinary infractions. [Administrative Error: Narrative Reason should read: by reason of misconduct – minor disciplinary infractions.]

040525:  DD Form 214: Applicant discharged with General (Under Honorable Conditions ) by reason of misconduct.

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PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040525 by reason of misconduct due to minor disciplinary infractions (A) with a service characterization of 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 (B and C).

The Applicant contends that her discharge is improper because “while on lithium, a psychiatric drug, her command told her that a general discharge was the best thing for [her].” Further, the Applicant contends that her command “promised [her] that this discharge would allow [her] to keep [her] Navy College Fund.” There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention of command misconduct. In the absence of incriminating evidence, the Board concluded that the government’s agents acted in good faith, proceeded within the bounds of the law, and conformed their behavior to appropriate standards during the Applicant’s Naval service and subsequent administrative processing. Regarding the Navy College Fund, records show that the Applicant enrolled on 20000825. At that time, the Applicant certified that she understood that she must receive an Honorable discharge to qualify for this benefit. The Board advises the Applicant that she bears the burden of establishing her issues through the presentation of substantial and credible evidence. The Applicant’s statements alone do not provide sufficient basis to grant relief. Relief denied.

The Applicant and her representative desire an upgrade based on quality of service. When a member’s service has been honest and faithful, it is appropriate to characterize that service as honorable. Characterization of service as general (under than honorable conditions) 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. There is irrefutable evidence that the Applicant’s conduct during her time in the Navy was not honorable. Indeed, the Applicant’s records contain:
•         Retention warning entry on 20030915 for deficiencies in performance and conduct concerning failure to appear at appointed place and time of duty;
•         Non-judicial punishment proceedings on 20031219 for violation of 2 specifications of UCMJ Article 92 Failure to obey lawful order or regulation; and
•         Vacation of suspended sentence on 20040512 due to continued misconduct.
•         Counseling entry on 20040512 concerning continued minor disciplinary infractions: failing to fulfill mandatory Fitness Enhancement Program on 5 occasions; driving a motor vehicle without a valid license; and arriving late to work on 3 occasions.
The Applicant’s conduct, which forms the primary basis for determining the character of her service, falls well below that required for an honorable characterization of service. An upgrade to honorable would be inappropriate; therefore relief is denied.

The Applicant is advised that 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 or enhancing employment and educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. Since these issues do not serve to provide a foundation upon which the Board can grant relief, relief on this basis is not warranted.

While 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 service, the Board 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. Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. The Applicant submitted a welcome letter from University of California, Riverside and a General Psychiatry letter for consideration. The Applicant’s efforts need to be more encompassing to include evidence of continuing educational pursuits, verifiable employment records, documented community service, and certification of non-involvement with civil authorities. At this time, there is not sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in the characterization of discharge. And so, no relief is granted on this basis.

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 post-service accomplishments or any other evidence related to the 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), re-issued October 2002, effective 22 Aug 2002 until 25 April 2005, Article 1910-138 (formerly 3630614), SEPARATION BY REASON OF MISCONDUCT - MINOR DISCIPLINARY INFRACTIONS .

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 .

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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