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NAVY | DRB | 2009_Navy | ND0900370
Original file (ND0900370.rtf) Auto-classification: Denied

ex-SR, USN
Current Discharge and Applicant’s Request
Application Received: 20081205
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3640420

 Applicant’s Request: Characterization change to:
                  Narrative Reason change to: MEDICAL UNDER HONORABLE CONDITIONS

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        19990114 - 19990125     Active:  

Period of Service Under Review:
Date of Enlistment: 19990126     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20000831      Highest Rank/Rate: SA
Length of Service : Y ear ( s ) M onth ( s ) 21 D a y ( s )
Education Level:        AFQT: 81
Evaluation M arks:         Performance: NFIR         Behavior: NFIR   OTA: NFIR

Awards and Decorations ( per DD 214):      NONE

Periods of Lost Time : 19991024-20000831 (308 days ), Appel l ate leave, Discharged in Absentia

- 19990512 :       Art icle 86 (UA ) 2225, 19990419 – 0220 , 19990420 (3 hours 55 minutes)
         Article 92 (Disobeying a lawful order), 4 Specifications
         Article 113 (Misbehavior of a sentinel or lookout), 2 Specifications
          Article 134 (Consumption of alcohol by a minor)
         Awarded : Susp ended :

- 19990525 :       Article 92 (Disobeying a lawful order), 2 Specifications
Article 134 (Consumption of alcohol by a minor)
         Awarded : Susp ended:

- 19990616 :       Article 86 (UA) 19990 526 –19990 615 ( 21 days )
         Article 92 (Disobeying a lawful order), 2 Specifications
Article 134 (Consumption of alcohol by a minor)
         Awarded : Susp ended:

SPCM:

- 19990924 :       Art icle 86 (UA) , 2 Specifications
         Article 89 (Disrespect toward superior commission officer)
         Article 91 (Disrespect toward a superior noncommissioned officer)
         Article 92 (Disobeying a lawful order), 3 Specifications
         Article 112a (Wrongful use of controlled substance, marijuana) , 3 Specifications
         Article 134 (Breaking restriction)
         Sentence : BCD; CONF 145 Days ( 19990810-1999102 2, 73 days ); FOP $3600.

SCM: C C : Retention Warning Counseling : NFIR


Types of Documents Submitted/reviewed

 Related to Military Service:     
DD 214:         Service/ Medical Record:                  Other Records:

Related to Post-Service Period:  
         Employment:                        Finances:                          Education /Training :     
         Health/Medical Records:           Substance Abuse:                           Criminal Records:       
         Family/Personal Status:           Community Service:                References:              
Additional Statements :
 From Applicant:        From Representat ion :    From Congress m ember :

Oth er Documentation : 2008 SSDI Benefit Statement

Pertinent Regulation/Law

 A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 22, effective 15 December 1998 to
21 August 2002, Article 5815-010, Executing a Dishonorable or Bad Conduct Discharge.
B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications .
C . 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 .

D . 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 86 (UA more than 30 days ), Article 89 (Disrespect toward superior commission officer) , Article 91 (Disrespect toward a superior noncommissioned officer) , Article 9 2 (Disobeying a lawful order) , Article 112a (Wrongful use of controlled substances ) , and 113 (Misbehavior of a sentinel or lookout) .




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

Applicant’s Issues

 1. Discharged while mentally ill and n ever received treatment or screening for bip olar d isorder with psychotic features.

Decision

Date: 20 0 9 0702             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall COURT-MARTIAL .
Discussion

 The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharg e if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of g overnment al affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. In response to the Applicant’s clemency request, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. With respect to a discharge adjudged by a court-martial case, 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. The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The Applic ant’s record of service included three nonjudicial punishments ( NJP s ) for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (UA , 2 specifications, 4 hours & 21 days), Article 92 (Disobeying a lawful order , 8 specifications ), Article 113 (Misbehavior of a sentinel or lookout , 2 specifications, left his post before being relieved and was found sleeping at post ) , Article 134 (Consumption of alcohol by a minor, 2 specifications ); and one special court-martial ( SPCM ) for violations of the UCMJ: Article 86 (UA, 2 specifications , 3 7 days and 1 day) , Article 89 (Disrespect toward superior commission officer , c alling his Lieutenant a disrespectful name ), Article 91 (Disrespect toward a superior noncommissioned officer , calling his Chief a disrespectful name ), Article 92 (Disobeying a lawful order , 3 specifications , consuming alcoholic beverag es while in a restricted status and wrongfully possessing a syringe on the 8 and 9 of August 1999 ), Article 112a (Wrongful use of a controlled substance, marijuana , 3 specifications, 15 June 19 99, 29 July 19 99, and 9 Aug ust 19 99 ) , and Article 134 (Breaking restriction) . After being sentenced to a Bad Conduct Discharge at his SPCM, the Applicant finished his confinement in the brig, went on appellate leave for 308 days , and was later discharged in absentia.

: (Decisional) ( ) . The Applicant contends he is entitled to clemency because he was d ischarged while mentally ill and never received treatment or screening for bip olar d isorder with psychotic features. On 02 August 1999, the Applicant was screened by a Substance Abuse Rehabilitation Department counselor with alcohol dependence and drug dependence (prior service and during service) for “THC, heroine for 10 days straight, meth, LSD, opium, crack, cocaine.” The NDRB note d that the Applicant never revealed his pre-service drug use when he enlisted in the Navy. The following day the Applicant was s creened by a medical doctor and i n the doctor’s consultation report of 03 August 1999 , the doctor noted the Applicant related to him a “FH [family history] of mood disorders & wonders whether he has Bi polar Disorder . ” The doctor diagnose d the Applicant with p oly - substance dependence, nicotine dependence, and substance induce d mood and slee p disorder, but made no diagnosis regarding bipolar disorder and prescribed prozac for drug withdrawals. From the transcripts of the SPCM, the Applicant never mentioned that he might have bipolar disorder, and, in fact, told the judge “Sir, I’m a drug addict, S ir.” The Applicant provided a copy of the Metro -W est Medical Center, Leonard Morse Hospital Discharge Summary (post-service) , documenting his psychiatric admission and discharge (22-29 August 2000) to this hospital. In this letter, it states, “He served in the U.S. Navy last year and received a dishonorable discharge for drug abuse. This later was amended to a diagnosis of bipolar disorder and his discharge is now under review.” For clarification, the narrative reason for discharge w as court-martial not drug abuse. In addition, his discharge was not amended nor was it under review . The Applicant also provided a medication record that listed he had been taking risperdal for manic depression with psychotic features starting on 1 June 2000. In the Applicant’s statement, he stated, “Somewhere in around 2001 the Federal Government recognized my disability and began to give me benefits in the form of SSDI [Social Security Disability Insurance] . ” Based on the age of the post-service medical documents identifying the Applicant’s mental illness (completed e ight months or greater after the Applicant left the service—late October 1999 ) , his testimony during his SPCM which noted his drug addiction , and the lack of any in-service diagnosis identifying the Applicant as bipolar despite being screened by medical personnel , the NDRB was unable to determined that the Applicant’s mental illness was a mitigating factor at the time of his discharge. The record of evidence clearly shows the Applicant demonstrated a sustaine d pattern of serious misconduct, which ultimately led to his conviction and discharge.

(Decisional) ( ) . Although the Applicant did not specifically request post-service conduct consideration , he did provide five character references on his behalf. The Board determined the Applicant did not provide sufficient post-service documentary evidence to form a basis of relief. Upon receipt of the Applicant’s DD Form 293 , the NDRB mails an acceptance letter that includes the Information Concerning Review Procedures , which discusses the submission of additional documents in paragraph 3, Submission of Evidence , and in the last section on page 4, Information Pertaining to a Review Based Upon Post-Service Conduct . However, even if the Applicant could have produced additional evidence to support a review based on his post-service conduct, the Applicant must have a full understanding that post-service conduct alone does not guarantee an upgrade.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, medical and service r ecord e ntries, and d ischarge p rocess, the Board found Therefore, the awarded characterization of service shall BAD CONDUCT and the narrative reason for separation shall remain .

 The Applicant remains eligible for a personal appearance hearing until fifteen years from the date of discharge. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct .



ADDENDUM: Information for the Applicant

 Complaint Procedures : If you believe 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 : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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. There are veterans organizations such as the American Legion and the Association of Service Disable Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. 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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. 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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB’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 BCNR can make changes to reenlistment codes. Additionally, the NDRB 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, 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 other medical related reasons. Only the BCNR can grant this type of narrative reason change.

 Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. Outstanding post-service conduct, 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, is considered during Board reviews. Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle. 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 in-service misconduct was an aberration and not indicative of the member’s overall character.

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 special 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. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership: The names and votes of the members of the NDRB 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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