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NAVY | DRB | 2009_Navy | ND0901540
Original file (ND0901540.rtf) Auto-classification: Denied

ex-QMC, USN
Current Discharge and Applicant’s Request
Application Received: 20090512
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3630605 [MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE]

 Applicant’s Request: Characterization change to:
                  Narrative Reason change to: CONVENIENCE OF GOVERNMENT

Summary of Service

Prior Service:
Inactive:         US N R 19751115 - 19771125       Active:   19760217 – 19800716 HON
         Active:   19810624 – 19860315 HON
         Active:   19860316 – 1991072 3 HON        
         Active:   1991072 4 – 19940201 HON


Period of Service Under Review:
Date of Current Enlistment: 19940202     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19970506      Highest Rank/Rate: QMC
Length of Service : Y ear ( s ) M onth ( s ) 04 D a y ( s )
Education Level:        AFQT: 75
Evaluation M arks:         Performance: 3.5 ( 2 )      Behavior: 3.5 ( 2 )        OTA: 3.70

Awards and Decorations ( per DD 214):      NCM Pistol NAM (2) CGUC (3) EAWS

Periods of C ONF : 19950821-19970506 IHCA

NJP :

S CM :

SPCM:

Arrested : [Extracted from Letter of Deficiency 19961206]
- 19950821 :       Offense: Attempted Murder in the S econd d egree
         Found guilty of Assault in the Fi rst degree .
         Sentence: Scheduled for September 1996
                          
Retention Warning Counseling :

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         “ UNDER OTHER THAN HONORABLE CONDITIONS ”
         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 760217 UNTIL 9 4 0201 ”

The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate.
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 /To Representat ion :            From /To Congress m ember :         
Oth er Documentation :   


Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 3 October 1996 until 12 December 1997, Article 3630605, SEPARATION OF ENLISTED PERSONNEL 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, Article 128 (Assault).



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

Applicant’s Issues

 1. The Applicant believes he should not be penalized for suffering from severe mental illness.            

Decision

Date : 20 10 0506 Location: Washington D.C . R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall .
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 discharge 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. T he Board did complete a thorough review of the circumstances which led to discharge and the discharge process to ensure discharge met the pertinent sta ndards of equity and propriety. The Applicant’s record of service included an arrest by civilian authorities, which he was charged with “Attempted Murder in the Second D egree .” He was eventually found guilty in a Hawaiian civilian court for “Assault in t he First Degree. ” Commission of a serious offense does not require adjudication by nonjudicial, judicial proceedings or civilian conviction; however, the offense must be substantiated by a preponderance of evidence. The statements and documents provided by the Applicant do not refute the presumption of regularity in this case. Based on the offense committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant exercised rights to consult with a qualified counsel, to submit a written statement, and to request an administrative board . The administrative separation board (ASB) voted unanimously (3-0) that the preponderance of the evidence supported that the Applicant committed misconduct due to a commission of a serious offense, recommended that he be separated from the Navy with an Under Other Than Honorable characterization. Based on the facts, the separating authority approved all recommendations by the ASB and discharged the Applicant accordingly. Upon discharge, the Applicant remained in the hands of civilian authorities until his civilian trial was completed.

: (Decisional) ( ) . The Applicant contends he should not be penalized for suffering from severe mental illness. The NDRB reviewed the Applicant’s case very carefully due to his mental health situation. Noted in medical documents, the Applicant had a history of drug ab use since age 16, including marijuana, LSD and alcohol. He states he use d LSD until age 19, marijuana until age 25 and alcohol until age 36. He was diagnosed by the Navy as being alcohol dependent and referred to Level I II treatment. In 1993, the Applicant received a second psychiatric evaluation from the Navy due to an episode of hostile/aggressive behavior. Later in May 1995, the Applicant was admitted to the psychiatric unit for several weeks. At that time, he was diagnosed with a Delusional Disorder and Paranoid Traits. Based on his condition, the medical staff began prepa ring him for a medical board. A fter being released from the psychiatric unit , the Applicant committed a crime that ultimately got him discharged.

While stationed in Hawaii in 1992 , the Applicant chose to get a second job by w orking on boats off base . During the next 3 years, several incidents/situations transpired that contributed to the Applicant’s troubles. First, the Applicant began to have an affair with another woman, who was not his wife. He even contemplated leaving his wife and marrying the women. Second, h e was fired from one of the jobs (dinner cruise) due to unknown reasons and thirdly he felt he was being blamed for a mishap that happened on another boat that he worked on . In April 1995, the women, who he had the affair and ended up assaulting, told him something bad was going to happen to him on his birthday , which is in September . The Applicant bought a hand gun and ammunition in order to kill those people he felt were conspiring against him and then kill himself. He said he threw the gun in Pearl Harbor and was caught with the ammunition in his car at the base gate. After this incident, he was admitted to the psychiatric unit for an extended stay . Eventually, the Applicant improved and was released. Days before the heinous crime against his former girlfriend, the Applicant kept telling the attending mental health doctor ’s that he was fit for duty and should be returned to his ship. The medical staff did not agree with him, but did feel he was getting better and were preparing a medical board. Two days later, on 21 August 1995, the Applicant attacked his former girlfriend with a knife at a bus stop . The Applicant was incarcerated by civilian authorities.

The Applicant was being seen by psychologists and psychiatrists prior to the incident, after the incident and throughout his criminal proceedings with the state and the administrative hearing by the Navy. The Applicant was diagnosed with multiple characteristics resulting in severe mental illness and conclude d that he was substantially impaired cognitively and volitionally. With these facts known, the NDRB took the Applicant’s mental illness into consideration, but also took into consideration the results of the state (civilian) trial of Hawaii v. Connor and the administrative board conducted by the Navy. Both the state trial and the administrative board found that the Applicant was guilty of the crime he committed and that he should continue to be incarcerated by the state and discharged from the Navy. In reference to the Navy administrative board, his counsel wrote a letter of deficiency about the proceedings and his objections to certain findings. The Staff Judge Advocate was required to review the letter of deficiency and found all to be sufficient by la w and fact. The NDRB opined that the Applicant’s circumstances were a by-product of his own questionable conduct and the people he associated with from 1992 to 1995. Therefore, the NDRB determined that the command properly discharged the Applicant and the characterization received was warranted. For the Applicant’s edification, DoD disability regulations do not preclude a disciplinary separation. SECNAVINST 1850.4C (in affect at the time of Applicant’s separation) stipulated that separations for misconduct take precedence over potential separations for other reasons. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, medical and r ecord e ntries, and d ischarge p rocess, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain . The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. The Applicant is directed to the Addendum, specifically the paragraphs titled Additio nal Reviews 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 Disabled American 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 their 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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