Search Decisions

Decision Text

NAVY | DRB | 2007_Navy | ND0700914
Original file (ND0700914.rtf) Auto-classification: Denied
ex-YNSR, USN
ND07-00914
Current Discharge and Applicant’s Request
Application Received: 20070627   Characterization Received:
Narrative Reason: MISCONDUCT     Authority: MILPERSMAN 1910-142

Applicant’s Request:     Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:      1. Misconduct was caused by his illness that was later diagnosed as Schizo-Affective Disorder, Bipolar type
                          

Decision

 By a vote of the Characterization shall .
By a vote of the Narrative Reason shall MISCONDUCT .

Date: 20080103    Location: Washington D.C         R epresentation :

Discussion

 Issue 1: ( ). The Applicant contends that his m isconduct was caused by his illness that was later diagnosed as Schizo-Affective Disorder, Bipolar type . Additionally, the Applicant contends that he was in the “manic phase” of his illness during the time of his discharge. The record reflects that on 20020804 the HARRY S. TRUMAN’s psychologist stated, “ I am familiar with, and have reviewed the file with respect to subject member. Based upon all available medical evidence, this member is intentionally producing his symptoms.” 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, the medical treatment given to the Applicant, or subsequent diagnosis’s to be of sufficient nature to exculpate the Applicant’s misconduct. When a Sailor ’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. A general (under 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 the award of a Summary Court-Martial on one occasion for a violation of the Uniform Code of Mil itary Justice (UCMJ) Article 92 (Failure to obey an order or regulation), Article 128 (Assault), and Article 134 (Disorderly conduct). Violation of the UCMJ Articles 92, 128, and 134 are considered serious offenses for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial . A n upgrade to honorable would be inappropriate

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries , Discharge Process and evidence submitted by the Applicant, the Board found th at

Summary of Service

Prior Service:
 Inactive: USNR (DEP)     20000526 - 20000619              Active:         
Period of Service Under Review:
 Date of Enlistment: 20000620     Years Contracted : ; Extension:   Date of Discharge: 20020814
Length of Service: 2 Yrs 1 Mths 25 D ys   Lost Time: Days UA: Days Confined: 30
Education Level:         Age at Enlistment:       AFQT: 50          Highest Rank/Rate: YNSN
Evaluation marks (# of occasions):NOT FOUND IN RECORD
Awards and Decorations (per DD 214): National Defense Service Medal, Armed Forces Expeditionary Medal, Sea Service Deployment Ribbon.
Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge
        
20020610 :        SCM -- Viol UCMJ Art. 92 – Failure to obey an order or regulation (2 specs), Art. 128 – Assault (2 specs), Art. 134 – Disorderly conduct (2 specs)       Awarded - RIR (E-1 ) C onfinement (30 d ays).

20020814:        USS HARRY S. TRUMAN psychologist: I am familiar with, and have reviewed the file with respect to subject member. Based upon all available medical evidence, this member is intentionally producing his symptoms. (Entry as a result of Applicant’s non-response to reviewing subject member’s rights with respect to his administrative separation procedure)

20020815:        Navy Medical Center Portsmouth: Applicant admitted 20020815-20020822.
 Diagnosis: Malingering, Antisocial PD
Recommendation: Long term therapy by care of Mental Health Professional for antisocial personality disorder
Discharge Process

 Date Notified:                                       20020730
 Reason for Discharge:    -
        
Least Favorable Characterization:       
Date Applicant Responded to Notification:                 20020730
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents                Did not identify
         Submit Statement(s) (date)                         Did not identify
         Administrative Board                      
         GCMCA review                               
Commanding Officer Recommendation (date):       
Separation Authority (date):    
Reason for discharge directed: 
Characterization directed:     
Date Applicant Discharged:       20020814

Types of Documents Submitted by Applicant and Considered By Board

 Related to Military Service:     Service and/or Medical Record:            Other Records:

Related to Post-Service Period:         
         Employment:                        Finances:                          Education:               
         Health/Medical Records:                   Substance Abuse:                           Criminal Records:       
         Family/Personal Status:                   Community Service:                References:              
        
Additional Statements From Applicant:    From Representative:
Other Documentation (Describe)

Pertinent Regulation/Law

 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. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs , Part V, Para 502, Propriety and Para 503, Equity .

C. 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, Articles 92, 128, and 134.

ADDENDUM: Information for the Applicant

 Complaint Procedures : 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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity , OUSD (P&R) PI-LP , The Pentagon , Washington, DC 20301-4000 . You should read Enclosure (5) of the Instruction 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 Instruction 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil . ”

Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the 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. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

 Service 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.
Employment/Educational Opportunities : 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 of the propriety and equity of the discharge.

Reenlistment/RE-code: Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.
Medical Conditions and Misconduct : DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or “PTSD.” Only the Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - 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 may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.

Issues Concerning Bad-Conduct Discharges (BCD ) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a court-martial, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed.

Board Membership: 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

Similar Decisions

  • NAVY | DRB | 2004_Navy | ND04-01231

    Original file (ND04-01231.rtf) Auto-classification: Denied

    The Applicant requests the characterization of service received at the time of discharge be changed to honorable. “I T_ R_ (Applicant) request a change in my discharge from other than honorable to honorable. Commanding Officer’s comments (verbatim): Airman Recruit R_ (Applicant) was awarded nonjudicial punishment on 21 July 1999, for wrongful use of marijuana, unauthorized absence and incapacitation for duty.

  • NAVY | DRB | 2000_Navy | ND00-00871

    Original file (ND00-00871.rtf) Auto-classification: Denied

    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 (D and E).The applicant had 4 issues listed on his form DD 293. The applicant states he can’t believe his false military I.D. The Board determined that, the applicant received an administrative separation and based on the applicant’s service record and supporting documentation, a General discharge, under Honorable...

  • NAVY | DRB | 2006_Navy | ND0600712

    Original file (ND0600712.rtf) Auto-classification: Denied

    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. The Applicant is advised that the Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board. You may view DoD Instruction 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...

  • NAVY | DRB | 2005_Navy | ND0501132

    Original file (ND0501132.rtf) Auto-classification: Denied

    ND05-01132 Applicant’s Request The application for discharge review was received on 20050629. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. The Applicant states that his record of service included good evaluations, awards and decorations, and that he had combat service.

  • NAVY | DRB | 2008_Navy | ND0801626

    Original file (ND0801626.rtf) Auto-classification: Denied

    The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case by case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.Besides the Applicant DD Form 293, no documentation was provided for review. ” Additional Reviews : Subsequent to a document review, former...

  • NAVY | DRB | 2002_Navy | ND02-00229

    Original file (ND02-00229.rtf) Auto-classification: Denied

    Naval Service dated January 30, 1946 Character reference dated March 1, 2002 Character reference, undated Letter from Applicant's parents dated February 24, 2002 Letter from Applicant's sister dated May 2, 2002 Letter from Applicant's parents dated April 2, 2003 Letter from Applicant's grandfather dated April 3, 2003 Letter from Applicant, undated Two pages of photographs Correspondence relating to request for congressional interest (18 pages) Personal memos of phone calls (5 pages) Phone...

  • NAVY | DRB | 2007_Navy | ND0700116

    Original file (ND0700116.rtf) Auto-classification: Denied

    Punished for a crime I did not commit.Date:20071128Location:Washington D.C. DecisionBy a vote of the Characterization shall .By a vote of the Narrative Reason shall IN LIEU OF TRIAL BY COURT MARTIAL.Discussion Issue3: either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant requested discharge to escape trial by court-martial for subsequent charges of violations of...

  • NAVY | DRB | 2007_Navy | ND0700025

    Original file (ND0700025.rtf) Auto-classification: Denied

    Complete Service Record: Complete Medical Record: Complete Discharge Package: Regarding propriety, the Board found the discharge: Regarding equity, the Board found the discharge: Discussion Issue 1 ().The Applicant contends that his problems in the Navy can be attributed to his medical conditions(a deviated septum and phobia).The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant provided evidence of post-service conduct in support of his request for...

  • NAVY | DRB | 2005_Navy | ND0500560

    Original file (ND0500560.rtf) Auto-classification: Denied

    The Applicant requests the characterization of service received at the time of discharge be changed to honorable. Applicant discharged by reason of misconduct due to a commission of a serious offense with a characterization of general (under honorable conditions). The NDRB is, however, 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...

  • NAVY | DRB | 2008_Navy | ND0801750

    Original file (ND0801750.rtf) Auto-classification: Denied

    After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found ADDENDUM: Information for the Applicant Complaint Procedures : 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 Instruction 1332.28, you may submit a complaint in accordance with...