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NAVY | DRB | 2006_Navy | ND0600192
Original file (ND0600192.rtf) Auto-classification: Denied


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

ex-MMFA, USN
Docket No. ND06-00192

Applicant’s Request
The application for discharge review was received on 20051108. 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 Private Representation as the representative on the DD Form 293. Per Applicant’s letter dated 20051212 the Applicant requested a personal appearance hearing before the Board. Subsequent to the application, the applicant obtained representation by American Legion.

 Decision

A personal appearance hearing discharge review was conducted in Washington, D.C. on 20061004 . The Applicant was granted an extension until 20061011 to provide additional documentation to support his request. 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 3 to 2 that the character of service shall not change . The dischar ge shall remain Under Other Than Honorable Conditions by reason of misconduct due to a pattern of misconduct .

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated
The Applicant and his Representative submitted the following issue, which supersedes all prior issues submitted to the Board:
“ Equity Issue: On the basis of the medical opinion or record, The American Legion request on this Applicant’s behalf that his characterization of service be upgraded to Honorable because his pattern of misconduct was directly related to his pattern of misconduct was directly related to his undiagnosed mental health condition.

 In accordance with Title 32, CFR, section 724.116 and SECNAVINST 5420.174D, Part I, Paragraph 1.20 , The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue.
This Applicant contends that his pattern of misconduct was du e to the onset of his mental condition. In the interest of fairness, this Applicant requests that his discharge be upgraded so he may seek VA benefits. This Applicant is diagnosed with bipolar disorder. This Applicant’s psychiatrist, L_ D. S_, has linked his misconduct in-service with his mental condition. As noted in the National Institute of Mental Health’s pamphlet, individuals suffering from bipolar disorder have difficulty concentrating and staying awake during a depressive episode. These two symptoms can be directly related to his VUCMJ Article 86 and VUCMJ Article 113. During a manic phase, an individual with bipolar disorder will display poor judgment and aggressive behavior. These can be related to this Applicant’s VUCMJ Article 90, VUCMJ Article 92 and VUCMJ Article 107.”

 During testimony, t he Applicant clarified his equity issue. He agreed that his post-service bipolar diagnosis should be evaluated on the basis as a mitigating factor for any in service misconduct.

Documentation
In addition to the service record, the following documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Letter from National Personnel Record Center, dtd November 1, 2004
Extracts from Service Record (25 pgs)
Extracts from Med Record (50 pgs)
Letter from L_ D. S_, M.D. Psychiatrist dtd March 29, 2005 (2 pgs)
Letter from Applicant dtd December 12, 2005
Cover Letter from American Legion, dtd March 15, 2006
Applicant’s DD Form 214
Department of Veterans Affair Claim Application dtd March 7, 2006
Letter from L_ D. S_, M.D. Psychiatrist dtd March 29, 2005 (2 pgs)
Letter from R_ S. C_, Marriage and Family Therapist dtd December 21, 2005
Extracts from Med Record (7 pgs)
The following additional documentation, submitted on October 4, 2006, was considered:
National Institute of Mental Health pamphlet on Bipolar Disorder
The following additional documentation, received by facsimile on October 11 , 2006, w as considered:
National Criminal Records Report, dtd October 8, 2006
Unofficial college transcript, dtd August 27, 1997
List of work history from Applicant
 Social Security Benefits, dtd September 28, 2005 (4 pages)
 Medical Note for T _ L _ , dtd January 3, 2005
Medical Note for T _ L _ , dtd January 24, 2005 (2 pages)
Medical Note for T _ L _ , dtd July 21, 2006 (3 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
                  Inactive: USNR (DEP)     19880916 – 19881006               COG
                  Active: None

 Period of Service Under Review :
Date of Enlistment: 19881007             Date of Discharge: 19910514

 Length of Service (years, months, days):

         Active: 02 07 07 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: none
         Confinement:              9 days

 Age at Entry: 18

Years Contracted: 4

Education Level: 12                                 AFQT: 59

 Highest Rate: MMFN

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 2.6 (4)              Behavior: 3.1 (4)                 OTA: 3 .00

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal, Navy “E” Ribbon, Sea Service Deployment Ribbon, Meritorious Unit Commendation.


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

UNDER OTHER THAN HONORABLE CONDITIONS/ Misconduct - Pattern of misconduct, authority: MILPERSMAN, Article 3630600.
Chronological Listing of Significant Service Events :

890906:  Applicant admitted for medical observation, was agitated, angry and voicing transparent suicidal/homicidal ideation but no specific plan or intent or individual named. Applicant voiced anger over unspecified events, people at work, family events at home.
 Admission D iagnosis : Suicidal/homicidal ideations, adjustment disorder, personality disorder NOS with borderline features.

891006:  Medical Department, USS DWIGHT D. EISENHOWER: Applicant referred by Dept Head and Duty Chaplain because of angry outbursts, appearing depressed and mentioning of suicidal/homicidal ideation. He has no definite plan or means of carrying any ideas out, but cannot guarantee that he can get to medical before he does something impulsive. Admit to ward for observation and evaluation of suicidality.

891007:  Applicant seemed to be doing much better today. No angry outbursts, speech and thought process much more coherent and goal directed. No significant risk of self-harm at this time.
 Assessment: Applicant no longer suicidal/homicidal ideative, adjustment disorder, borderline personality traits not warranting disorder at this time. Offered stress management consult but Applicant disagreed with this plan. Discharge to duty in morning with follow up within a few days.
891207:  NJP for violation of UCMJ, Article 86: Unauthorized absence from appointed place of duty on 891122 to wit: S2M Muster.
 Violation of UCMJ, Article 134: On or about 891122 without authority found sleeping in an unauthorized area.
          Award: Confinement on Bread and Water for 3 days. No indication of appeal in the record.

891213:  Retention Warning: Advised of deficiency (Pattern of misconduct evidenced by violation of the UCMJ, Article 86: Unauthorized absence from place of duty & Article 134: Sleeping in an unauthorized area), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

900127:  Applicant’s psychiatric difficulties were esse ntially situational . N o disease exist that would preclude clearance . R ecommended for access.
900706:  Applicant to unauthorized absence at 0800 on 900706.

 900706:  Applicant from unauthorized absence at 0930 on 900706 (1 hour, 30 minutes/surrendered).
900803:  NJP for violation of UCMJ, Article 92: Derelict in the performance of duty on 900712.
 Violation of UCMJ, Article 107: Making false official record entries on 900712.
Violation of UCMJ, Article 113: Sleeping while on watch on 900706.
         Award: Forfeiture of $421.00 pay per month for 2 months (1 month suspended for 6 months), confinement on 3 days bread and water. No indication of appeal in the record

910412:  NJP for violation of UCMJ, Article 90: Failed to obey a lawful command on 910308.
         Award: Forfeiture of $422.00 pay per month for 1 month, 3 days bread and water, and reduction in rank. No indication of appeal in the record.
910418:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and by reason of misconduct due to commission of a serious offense as evidenced by all punishments under the UCMJ in your current enlistment.
910422:  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 supporting the basis for the separation. Applicant objected to separation.
910426:  Commanding Officer, USS DWIGHT D EISENHOWER recommended discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct and misconduct due to commission of a serious offense. Commanding Officer’s comments: “MMFA L_’s (Applicant) repeated violation of the UCMJ cannot be tolerated further, he has been counseled and warned regarding the consequences of his misconduct, in this regard, the counseling requirements of REF A have been met and are documented in a page 13 service record entry dated 13 DEC 89. In view of MMFA L_’s (Applicant) history of misconduct he is considered to have no potential for further productive military service. I strongly recommend that MMFA L_ (Applicant) be discharged from the naval service under other than honorable conditions due to a pattern of misconduct and misconduct due to commission of a serious offense.”

910502:  Medical Officer, Medical Department, USS DWIGHT D. EISENHOWER (CVN-69) Impression: Adjustment disorder, personality traits, antisocial, narcistic, not presently homicidal or suicidal. Plan: Admit to ward.

910502:  CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19910514 by reason of misconduct due to a pattern of misconduct (A ) 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 (B and C).

The Applicant contends that his character of service is inequitable due to his undiagnosed mental health condition. During sworn testimony, the Applicant informed the Board the he was diagnosed with dysthymia in high school, and that he did not disclose this condition during military entrance processing. A review of the Applicant’s records reveal that on 19890906, he was seen and diagnosed by competent medical authority with adjustment disorder and personality disorder, not otherwise specified, with borderline features. Later on 19891006, the Applicant was admitted to a hospital ward for observation and evaluation for suicidal ideation. The subsequent diagnosis, on 19891007, was adjustment disorder and borderline personality traits not warranting disorder. At that time, the Applicant was offered a consult for stress management. The Applicant disagreed with the treatment plan, and he was returned to duty. In documents submitted by the Applicant, he was treated after leaving the service in an individual psychotherapy setting. He attended nineteen sessions from 199204 to 199206, from 199407 to 199408, and from 199612 to 199701. No diagnosis was made. On 20041128, the Applicant was seen by a psychiatrist with V_ O_ and a diagnosis of Bipolar I Disorder, Most Recent Episode Depressed, Unspecified, was made. Subsequently, on 20050117, the Applicant was seen by a second psychiatrist with the same organization and a diagnosis of Bipolar I Disorder, Most Recent Episode Depressed, Mild, was made. This civilian psychiatrist opines that the Applicant’s in service psychiatric problems were most likely due to the onset of Bipolar Disorder. Based on this review, the Board concluded that the Applicant’s post-service diagnosis of 20041128 and 20050117 do not invalidate the earlier diagnosis received while on active duty. Relief not warranted.

The Applicant contends that his character of service is inequitable because his pattern of misconduct was directly related to his undiagnosed mental health condition. The Applicant’s pattern of misconduct is well documented. The records contain:
•         Non-judicial punishment proceedings on 19891207 for violation of UCMJ Article 86 Unauthorized absence and Article 134 Sleeping in an unauthorized area;
•         Retention warning entry on 19891213 for deficiencies performance and conduct concerning a pattern of misconduct ;
•         Non-judicial punishment proceedings on 19900803 for violation of UCMJ Article 92 Dereliction in performance of duty, Article 107 False official record entries, and Article 113 Sleeping while on watch; and
•         Non-judicial punishment proceedings on 19910412 for violation of UCMJ Article 90 Failed to obey a lawful command.
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 excuse the Applicant’s misconduct. In fact, the NDRB sees no connection between the Applicant’s misconduct and his medical condition. While competent medical authority diagnosed the Applicant with personality disorder, applicable regulations stipulate that the separation for personality disorder is not appropriate when separation is warranted for any other reason (e.g., member meets minimum criteria for misconduct processing). The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls well below that required for an honorable characterization of service. An upgrade to honorable would be inappropriate; therefore relief is 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 military 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. During the personal appearance hearing proceedings the Applicant informed the panel that , after leaving the Navy, he was diagnosed and treated for Bipola r Disorder , had been declared fully disabled due to Bipolar Disorder by the Social Security Administration, and had no police involvement . At the time of the hearing, the Applicant did not provide any documentation to support these claims. The Applicant was granted an extension until 2006 1011 to provide documentation for consideration. The Board received and considered the Applicant’s national criminal records report, unofficial college transcript, Social Security benefits statement, and medical notes . After careful consideration, the Board concluded the Applicant’s post-service documentation was insufficient to mitigate the misconduct while in the service. Relief denied.
The following is provided for the edification of the Applicant. The Applicant has exhausted opportunities for review at the NDRB. If further review is desired, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of service.
Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560A, Change 8 effective 21 Aug 89 until 14 Aug 91), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - A 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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