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NAVY | DRB | 2006_Navy | ND0600207
Original file (ND0600207.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-OS2, USN
Docket No. ND06-00207

Applicant’s Request
The application for discharge review was received on 20051116 . 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 20061109 . After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, impropriety 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 shal l change to: HONORABLE/SECRETARIAL AUTHORITY, authority: MILPERSMAN 1910-164, Separation Code “JFF.”

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“ As per Navy Personnel Manual….. A service member cannot be held past EAOS to be given a punitive discharge. I went over my EAOS and was still given an OTH….This has hampered me from receiving VA Benefits. ”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from Applicant, dtd November 29, 2005
 Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19890825 - 199 00822       COG
          Active: USN      19900823 - 19940616       HON
Period of Service Under Review :
Date of Enlistment: 19940617              Date of Discharge: 20010716

Length of Service (years, months, days):

          Active: 0 7 00 29 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 1 56
         Confinement:              unknown

Age at Entry: 22

Years Contracted: 6

Education Level: 1 2 (GED)                           AFQT: 85

Highest Rate: OS2

Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3 . 4 ( 5 )              Behavior: 3.0 ( 5 )                 OTA: 3 . 3 1

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Marksman Pistol Shot Ribbon, Marksman Rifleman Ribbon, Good Conduct Medal, Meritorious Unit Commendation (2) .


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 :

940617 :  Reenlisted this date for a term of 6 years.
941027:  NJP for violation of UCMJ, Article 134:
         Specification: In that OS2 Cullenton on or about 9 Septembr 1994, Drunk and Disorderly, which conduct was of a nature to bring discredit upon the armed forces.
         Award: extra duties for 30 days, reduction to E-4 (suspended for 6 months). No indication of appeal in the record.
991007:  Univeristy of Missouri, Hospitals and Clinic. Discharge Diagnosis:
1.       Febrile illness with encephalopathy
2.       Mental status changes
3.       Dehydration
4.       Hyperbilirubinemia
5.       Pneumonia
                   Procedure and Treatments
1.       Intravenous fluids
2.       Intravenous antibiotics
3.       Computerized axial tomography scan of the head
4.       Lumbar puncture
5.       Infectious Disease consultation
 Discharge Medications: Doxycycline
 History of present illness: The patient is a 27 year old gentleman with no significant past medical history. He was found by police talking to trees and street signs on the day of admission. On questioning, the patient stated he was a Navy Seal stationed in San Diego. He did not know how he got to Columbia, Missouri. He was brought to the Emergency Room for further evaluation. In the emergency room, the patient was found to be confused and disoriented. The patient stated that he was scheduled for presurgery on the day of admission at a Naval Hospital in San Diego. The Emergency Room physician called a Naval hospital in San Diego and there was no report of the patient ever being seen. The emergency room physician talked with commander of the Navy Seal unit and it was reported the patient was missing from the unit. The patient could not give further details of information due to his confusion.
991008:  Medical evaluation by Naval Medical Center San Diego Mental Health Service .
          AXIS I: Mood Disorder NOS Rule Out (293.83) Mood Disorder Due to a General Medical Condition, Bipolar Disorder, Manic
         AUXUS I: Rule Out Dissociative Disorder NOS
 AXIS II: No Diagnosis
AXIS III: pneumonia (suspected mycoplasma)
AXIS IV: Patient currently denies
 AXIS V: ( admission): 41-50 Serious symptoms or difficulty functioning
         Plan and Recommendation:
 1. Admit to locked unit inpatient psychiatry
2. Liaison with command Seal Team 3 and with command’s medical officer.
3. Continue Doxycyline 100 mg po bid
4. Medicine consult to continue to evaluate pneumonia, possible leptospirosis.

991012 :  Medical evaluation by Naval Medical Center San Diego Mental Health Services .
          Chief Complaint: Wrote suicide note, was UA for 8 days (26 Sept 99 to 4 Oct 99), found in Columbia, Missouri with disorganized behavior, leukocytosis, dehydration, chest x-ray consistent with pneumonia. Course of treatment: The patient was voluntarily admitted to the locked psychiatry ward, 1 west, and placed on ward restriction secondary to the patient’s ability to convincingly contract for safety on the ward and deny any desire to harm himself or others. On the morning following admission, he underwent further psychiatric evaluation and mental status exam by the undersigned physicians. At that time, was transferred to an open ward. He was afforded individual, group, milieu, an d recreational therapy. . . . He was discharged on hospital day #5 with the plan and recommendation described below.
         AXIS I: Dissociative Disorder NOS, Resolved
         AXIS I: (293.0) Possible Delirium Due To Infection, Resolved
         AXIS II: No Diagnosis
 AXIS III: pneumonia
AXIS IV: Patient currently denies
AXIS V : (current) 81-90 Absent or minimal symptoms, good functioning in all areas
         Plan and Recommendation:
 The patient is nei ther suicidal nor homicidal.
The patient is not in need of psychiatric medication at this time.
Instruction to the patient:
This service member is returned to command on a full duty status.

991223:  Applicant arrested in Broward County, Florida for aggravated assault, improper exhibiting of a dangerous weapon, and disorderly conduct. [Extracted from CO’s letter of 010523]

000206:  Applicant declared a deserter . NEC 5326 removed due to violation of Administrative Remarks (NAVPERS 1070/613) dated 15 October 1999, arrest for threatening a police officer with a knife while on leave and Unauthorized Absence from SEAL Team THREE as of 7 January 2000. [Extracted from Evaluation Report & Counseling Record dtd 000330 .]

001002:  Applicant on unauthorized absence from 001002.
001006:  Applicant arrested in Scottsdale, Arizona for resisting arrest/disorderly conduct. [Extracted from CO’s letter of 010523.]

010226:  Applicant from unauthorized absence. [Extracted from DD 214.]
010403:  Naval Medical Center, San Diego, CA. Diagnostic impression
         Axis I. Alcohol Abuse Delirum Resolved
         Axis II: None
         Axis III: Wilson’s disease by patient’s history
         Opinion: “ It is my opinion that with reasonable medical certainty, that in December 1999, the [Applicant] may have been suffering from a severe mental disease or defect if he does have Wilson’s disease. However, at the time of the alleged criminal conduct, the [Applicant] was able to appreciate the nature and quality or wrongfulness of his conduct. The Applicant’s previous unauthorized absence in October 1999 and in Jan 2000 appear to have been related to a delirium of some sort. Based on all of the material that I have, I cannot determine exactly what it is. ” Signed M_ F. C_, LCDR, MC, USNR.
010405:  Memorandum of understanding between Applicant and the Commanding Officer, Seal Team Three. Background: Applicant faces two charges involving violations of Article 85 and Article 128 of the UCMJ. Purpose is to provide a framework for the disposition of charges pending. Applicant agrees that he has consulted to counsel, agrees to waive discharge board, that the discharge will most likely be an Other Than Honorable Characterization, and that the Applicant understands the consequences of these actions. In exchange the Commanding Officer agrees to withdraw charges pending at court martial and will dispose of them administratively.

0 10 501 :  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct commission of a serious offense and misconduct civilian conviction.

010 509 :  Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to submit statements to the Administrative Board or the Separation Authority in lieu of a board and the right to obtain copies of the documents used to support the basis for the separation.

010504:  Substance Abuse Rehabilitation Department (SARD), NMCSD, Substance Abuse Screen Notes
         AXIS I: 293.9 History of Mental Disorder Not Otherwise Specified Due to Wilson’s Disease, Nicotine Use
         AXIS II: None
         AXIS III: 275.1 Wilson’s Disease
         Recommendation:
 Pt. to continue to abstain from alcohol. Pt. to attend IMPACT class.

010523:  Applicant completed Alcohol-Impact Course.
0 10523 :  Commanding Officer, SEAL Team THREE recommended discharge under other than honorable conditions by reason of commission of a serious offense . Commanding Officer’s comments : “ Per references (a) and (b), Petty Officer C_ (Applicant) is recommended for separation from Naval Service by reason of misconduct due to commission of a serious offense. As evidenced in enclosure (1), Petty Officer C_ (Applicant) has waived his administrative board in exchange for alcohol dependency treatment and further separation outlined in enclosure (2). Although he has committed crimes serious enough for court martial, I believe that his combined six-month detainment in the Maricopa County Prison and Naval Consolidat ed Brig Miramar, while awaiting trial, has been punishment enough for crimes committed. The Other Than Honorable (OTH) characterization of service is commensurate with the violation charged. Alcohol awareness school has educated him on the dangers of alcohol and its unfortunate relationship to his past military and future civilian conduct. He is now ready to end his military career and begin a productive one as a civilian .”
010629 :  GCMCA, Commander, Naval Special Warfare Command authorized the Applicant's discharge under other than honorable conditions by reason of misconduct commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged in absentia on 20010716 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 not proper and equitable (C and D).

The Applicant requests that his discharge be upgraded to honorable because he was improperly discharged after being held past the expiration of his active obligated service . The B oard agrees with the Applicant ’s assessment that his discharge was not proper . The Applicant was properly held past his Expiration of Active Obligated Service ( EAOS ) because of pending courts martial charges . Rather than sending the Applicant to a courts martial he was administratively discharged instead . MILPERSMAN 1910-208 states that a member may not be held past his EAOS for administrative separation. It further states that the prohibition includes members who are held for courts martial, but do not receive a punitive discharge. T he Applicant was held approximately a year past his original EAOS. While some of that time can be accounted for through lost time, it is difficult to determine how much of it is lost time because of an incomplete record. The B oard cannot account for the entire 12 months even allowing some leeway using the presumption of regularity. This is a procedural error. The fact that the Applicant's command committed this error and allowed him to reach his EAOS before administratively discharging him requires the NDRB to change the narrative reason for separation to Secretarial Authority. The board further has to reassess t he character of his discharge. Since the Applicant was held past his EAOS , the B oard is required to award a discharge based on the cumulative markings. Based on his cumulative markings, the Applicant’s discharge is changed to Honorable. This relief is therefore provided.
The Applicant also states that he would like Veteran’s benefits. 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.

Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 31, dated 20 Feb 01, effective 25 Jan 01 until 21 Aug 02, 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 134 (drunk and disorderly) and Article 86 (unauthorized absence for more than 30 days).

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

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