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NAVY | DRB | 2011_Navy | ND1101649

Original file (ND1101649.rtf) Auto-classification: Denied

ex-SR, USN

Current Discharge and Applicant’s Request

Application Received: 20110627

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to:

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        19991119 - 20000110     Active:

Period of Service Under Review:
Date of Current Enlistment: 20000111     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20000912      Highest Rank/Rate: SR
Length of Service: Y ear( s ) M onth( s ) 0 2 D a y ( s )
Education Level:        AFQT: 57
Evaluation M arks:         Performance: 1.0 ( 1 )      Behavior: 1.0 ( 1 )        OTA: 1.0

Awards and Decorations ( per DD 214):      NONE

Periods of UA /C ONF : Pre-Trial CONF (47 days)             UA : 20000612 - 20000613 (1 day )

NJP :              S CM :             SPCM:             C C :

Retention Warning Counseling :

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:          Rehabilitation/Treatment:                  Criminal Records:
         Personal Documentation :          Community Service:                References:
         Department of VA letter:                  Oth er Documentation:
                  Additional Statements :
         From Applicant:          From /To Representation:          From /To Congress m ember :

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 29, effective 11 July 2000 until
21 August 2002, Article 1910-106, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

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 .

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

Applicant’s Issues

1. Applicant contends his separation was a result of a m isdiagnos ed personality disorder that was actually a bipolar disorder.

Decision

Date: 20 1 2 0 90 6 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 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. T he Board complete d a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service did not include any NAVPERS 1070/613 (Page 13) retention warnings, commanding officer nonjudicial punishment (NJP) or trial by courts-martial. The record did reflect that the Applicant, while assigned to Naval Submarine School in Groton CT, had several documented incidents of violating the Uniform Code of Military Justice (UCMJ) , to include : Article 86 ( Absence without leave, failure to go to appointed place of duty, multiple incidents , and unauthorized absence 12-13 June 2000 ), Article 92 ( Failure to obey an order or regulation, underage drinking, 11 May and 17 July 2000 ), Article 112a ( Wrongful use, possession, etc of a controlled substance, marijuana, on or about 25 June 2000, as evidenced by NAVDRUGLAB msg 282134Z Jun 00 ) , and Article 134 ( General Article, Restriction breaking, 17 July 2000 ). The Applicant did not have a drug waiver for pre-service illegal drug use prior to entering the Navy.

The Applicant received mental health evaluations on 2 June and 5 June 2000 after voicing a suicide ideation. He was diagnosed with AXIS I: Polysubstance Abuse (alcohol and marijuana) and AXIS II: Personality Disorder N ot Otherwise Specified with borderline and immature features manifested by affective instability, and suicidal thoughts. The examining p sychologist stated , “Member is considered psychiatrically unsuitable for nava l service due to a longstanding and very severe personality disorder that manifests itself in an inability to cope adequately with stress and also manifests in extreme affective instability with suicidal thoughts. I strongly recommend that the servicemember be considered for expeditious administrative discharge as he poses a high risk for self-harm and harming others should he remain on active duty … . ” However, b ased on the repeated and serious offenses committed by the Applicant, his command placed him into pre-tri a l confinement and referred him to trial by S pecial C ourt- M artial. On 23 August 2000, the Applicant, after consulting qualified counsel, submitted a request for separation from the Navy in lieu of trial by court-martial, in exchange for his admission of guilt in violating UCMJ Articles 92, 112a, and 134. On 28 August 2000, the Convening Authority approved the Applicant’s request and directed that he be separated from the Navy with an Under Other Than Honorable Conditions characterization of service due to Separation In Lieu of Trial by Court - Martial. The Applicant was discharged from the Navy on 12 September 2000.

: (Decisional) ( ) . The Applicant contends the misconduct for which he was separated was a result of a misdiagnosed personality disorder that was actually a bipolar disorder. The Applicant submitted substantial, credible post -service medical documentation and character reference letters in support of his issue. The Applicant’s post-service records clearly indicate the Applicant was diagnosed with bipolar disorder , and he has endured a significant amount of personal hardship due to the severe effects on his judgment, decision making, personal relationships, and ability to deal with stress. After detailed analysis and careful consideration of the Applicant’s in-service medical records, his performance and conduct while on active duty, and the significant post-service medical evaluation, treatment, and care of his mental health condition, the NDRB determined that although the Applicant was responsible for his actions and the misconduct that led to his separation from the Navy, his mental illness did provide for some mitigation and relief with an upgrade to General (Under Honorable Conditions) was warranted . Accordingly, the Board found that the Applicant’s issue provided a basis upon whic h relief could be granted. R elief granted.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, and the separation in lieu of trial by court martial p rocess, the Board found the discharge was proper and equitable at the time of his discharge. However, based on the significant post-service medical evidence submitted on the Applicant’s behalf, the NDRB determined the awarded characterization of service shall GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain IN LIEU OF TRIAL BY COURT MARTIAL. 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 for additional information.

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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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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NAVY | DRB | 2011_Navy | ND1101649

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