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

  ex-LTJG, USNR
Docket No. ND05-00138  

Applicant’s Request

The application for discharge review was received on 20041020.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area.  The Applicant did not designate a representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing

Decision

A documentary review was conducted in Washington, D.C. on 20050713.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was 3 to 2 that the character of the discharge shall not change.  The discharge shall remain:  GENERAL (UNDER HONORABLE CONDITIONS/MISCONDUCT, authority:  SECNAVINST 1920.6B.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1.  Respectfully request the changes indicated in Block 5 of DD FORM 149, MAY 2003 based on the following information.  Additionally, I respectfully request a DD-21 5 copy.  Other supporting documents such as copies of FITREPS, mother’s and shipmates’ statements are located in unobtainable storage in PA, and I am located in Sicily, Italy.  In the event you request my return to appear in person, or require the documents for final disposition, I may be able to obtain these at that time.

2.  BLOCK 24.  Please change from GENERAL to HONORABLE due to:

(a) Punishment from NJP and separation (due to serious misconduct) from the Navy is too harsh for the crime.

(b) NJP Charge of Unauthorized Absence (UA) and Conduct Unbecoming (due to UA) should warrant an HONORABLE character of service considering the comparison of drug offenders’ service and other serious offense crimes that warrant service being characterized also as HONORABLE.

(c) I was undergoing extensive medical evaluation and was identified as bi-polar (and taking medication), so I was medically unfit to get underway for ship’s movement during charged UA period; I had orders to stay behind on beach detachment.  Beach detachment had no assignments for me, other than to muster everyday; I felt like a waste of manpower.

(d) Extenuating circumstances.  I inquired about leave papers from the command I was temporarily assigned, in order to travel to my Mother’s unexpected cancer surgery in PA (creating excessive, additional, stressors on me), but they preferred my permanent command to grant written approval in their stead.  After aggressively attempting to contact my underway ship several times without much success (I did get through a few times, but never had access to or a call back from approving authority-Executive Officer).  I made a bad decision to proceed on leave, believing I would return before the ship was scheduled to return, and would submit my “already used leave” papers at that time (It was standard practice on my ship for officers to sign in and out on leave without calling the quarterdeck.  We signed our own time in and out; of course it was not, however, standard practice to “bottom-line”, approve our own leave papers the way I did).  I truly believed that since I was not an asset to my ship, and my Beach Det Commander did not mind (but would not sign?), the ship would have no reason to disapprove my leave or care that I had taken some leave (leave balance was in excess of 30 days).

(e) My FIRST infraction in the Navy.  While I wasn’t progressing well in the area of obtaining my Surface Warfare Officer pin (due to medication and lack of underway experience), I was an asset to the ship and gave a hard days work for my pay.  I felt like I let myself and others’ down in the “underway availability” area, and maybe that was held against me, and certainly wouldn’t help my fight for retention in the Navy.  **NOTE** Lack of obtaining a warfare pin in allotted timeframe, is considered “substandard performance” in accordance with reference (a), and warrants an HONORABLE discharge.

(f) As I mentioned above, I was in medical treatment so I was probably considered worthless to my sea-going vessel, and a healthy relief would better please my Commanding Officer (especially with a crew of only six officers).  To this day, I truly believe that my CO took me to mast to beat the medical board I was waiting on to determine “fit for duty” and retention.  The NJP sure got me a relief much quicker than the Bureau of Medicine Board would have.

(f) Number of days charged UA is incorrect, as I stated to the Commanding Officer at NJP; Period of UA was not 5-6 days, in fact it was three.  All of these points and many more fell on deaf ears at NJP.

(g) I don’t believe enclosure (3) was delivered to the Admiral with convening authority/ NAVPERSCOM.  The lawyer who was appointed was hard to reach or made me feel that he had better things to do than assist me.  I never received confirmation that it went out or back, and was not given a copy of any paperwork that was elevated to higher authority other than the CHNAVPERS letter 1920 Ser 834D/383 of 17 Jun (letter that I was recommended for separation).  I spoke to an officer at PERSCOM (separations desk), and his office had no record of a statement with my package.

3.  BLOCK 25.  Please change from MILPERSMAN-1910-l42 (Enlisted separations) to BUPERS Order number 2662 OR MILPERSMAN 1611-010 in accordance with reference (a).

4.  BLOCK 26.  Please change from JKQ (misconduct punishable up to 6 months confinement) to HHK (unacceptable conduct) or JHK (performance below accepted standards in accordance with reference (a).

5.  BLOCK 27.  Please change from RE-4 (Enlisted reenlistment code) to NA.

6.  BLOCK 28.  Please change from MISCONDUCT to ADMINISTRATIVE.

7.  Thank you very much for your consideration.  I may be reached at cellular 011-39-346-214-9443 or home at 011-39-095-896-115 for additional information.
[signed]
J. M. S_ (Applicant)”

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214
Applicant’s Separation Orders (231106Z SEP 02)
Applicant’s Statement (explaining circumstances leading to Admin Discharge process), addressed to CNP dated Jul 11, 2002 (3 pages)
Applicant’s Medical Record, Consultation Sheet, dated Mar 23, 2001 (2 pages)
Applicant’s Medical Eval, NAVHOSP Corpus Christi TX, dated Mar 23, 2001
Applicant’s Medical Eval, NAVHOSP Corpus Christi TX, dated Apr 26, 2001
Applicant’s Medical Eval, NAVHOSP Corpus Christi TX, dated May 24, 2001
Applicant’s Medical Eval, NAVHOSP Corpus Christi TX, dated Jun 12, 2001
Applicant’s Medical Eval, NAVHOSP Corpus Christi TX, dated Jun 25, 2001
Applicant’s Medical Eval, NAVHOSP Corpus Christi TX, dated Jul 9, 2001 (3 pages)
Applicant’s Medical Eval, NAVHOSP Corpus Christi TX, dated Jul 10, 2001
Applicant’s Medical Eval, NAVHOSP Corpus Christi TX, dated Jul 24, 2001
Applicant’s Medical Eval, NAVHOSP Corpus Christi TX, dated Jul 30, 2001
Applicant’s Medical Eval, NAVHOSP Corpus Christi TX, dated Sep 13, 2001
Applicant’s Medical Eval, NAVHOSP Corpus Christi TX, dated Sep 28, 2001
Applicant’s Medical Eval, NAVHOSP Corpus Christi TX, dated Nov 2, 2001
Applicant’s Medical Eval, NAVHOSP Corpus Christi TX, dated Nov 8, 2001
Applicant’s Medical Information, Staff Psychologist, dated Nov 1, 2001
Applicant’s Medical Eval, NAVHOSP Corpus Christi TX, dated Nov 27, 2001
Applicant’s Medical Information, Psychiatrist, dated Dec 6, 2001
Applicant’s Medical Information, Psychiatry, dated Aug 7, 2002
Naval Hospital, Corpus Christi, Limited Duty Medical Board, dated Mid-Nov 2001
Applicant’s letter to Board dated Dec 6, 2004
Applicant’s letter of explanation dated Feb 17, 2005 to the Board providing discharge documents/performance evals (2 pages with 5 enclosures)
Applicant’s notification letter of change of address dated May 30, 2005

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

Inactive: USMCR (Conditional Enl)		950830 - 960820	COG
Inactive: USNR (NROTC)	960821 - 961114	ELS (NROTC) 
Inactive: USMCR (NROTC)			970113 - 970826	HON (Interservice 
Transfer)
Inactive: USNR (NROTC)			970827 - 970513	HON (To accept 
commission in USNR)

Period of Service Under Review:

Date of Commission:  990514		Date of Discharge:  021008

Length of Service (years, months, days):

	Active:    03  04  19  (Does not include time lost)
	Inactive:  None

Age at Entry:  23			Years Contracted:  8

Education Level:  16			AFQT:  N/A

Highest Rank:  LTJG

Final Officer Performance Evaluation Averages:  All performance reports were available to the Board for review.

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Marksmanship Medal, Pistol Marksmanship Medal, NDSM, Battle “E” Ribbon

Days of Unauthorized Absence:  6

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS/MISCONDUCT, authority:  SECNAVINST 1920.6B.

Chronological Listing of Significant Service Events:

990526:	Accepted permanent grade of Ensign.

010312:	Naval Hospital Corpus Christi, Mental Health Dept:  24 y/o O-1/AD/USNR male with c/o depression x 3 weeks.  C/O insomnia, increased irritability, guilt over personal issues and difficulty concentrating and making decisions.  Mother dx’d with thyroid cancer and father just had bilateral knee replacement.  Provisional diagnosis:  Depression.  [Extracted from Applicant’s supporting documents].

010323:	Naval Hospital Corpus Christi, Mental Health Dept:  24 year old active duty male with approx. 2 years time in service.  Currently 0-1/ENS aboard USS BLACK HAWK.  
History:  Referred by ships’ medical secondary to insomnia, irritability, guilt, depression, & decrease concentration.  Pt reports onset approx. 6 months ago with recent worsening for 3 weeks resulting in IDC and a friend both approaching him about it.  Aware he is getting angry and upset about things vs. his usual easy going self but didn’t realize his behavior was as noticeably different to others as it was which has him concerned.  Both parents with failing health, however ongoing with years, not a new situation.  [Extracted from Applicant’s supporting documents].

010426:	Naval Hospital Corpus Christi, Mental Health Dept:  Assessment:  24 y.o. male AD/USN/O-1 likely Bipolar spectrum or Depression disorder, however will start on antidepressants & see if Bipolar disorder Sx emerges.  Axis I:  Depressive disorder NOS (provisional) R/O Bipolar D/O NOS.

011120:	NJP:  Charge:  violation of UCMJ, Article 86 (2 Specs):
Specification 1:  In that LTJG J_ M. S_, USN, USS BLACK HAWK, on active duty, did, on board USS BLACK HAWK, AT OR ABOUT 1000, 15 October 2001, without authority, absent himself from his place of duty at which he was required to be, to wit:  USS BLACK HAWK, located at Naval Station Ingleside, and did remain so absent until on or about 1500, 15 October 2001.
Specification 2:  In that LTJG J_ M. S_, USN, USS BLACK HAWK, on active duty, did, on board USS BLACK HAWK, at or about 0830, 07 November 2001, without authority, absent himself from his unit, to wit:  USS BLACK HAWK, located at Ingleside, Texas, and did remain so absent until at or about 1500, 13 November 2001.
	Award:  Reprimand in writing.  

011120:	Commanding Officer, USS BLACK HAWK, issued Applicant a Punitive Letter of Reprimand.

011121:	Staff Psychologist, L. W_, Ph.D.  Symptom:  Relates period of feeling alienated from ship having been left behind.  Became very depressed so thought he would go home “in case I didn’t see him again”.  Admits to suicidal ideation during this period of time.  Attempted to contact ship numerous times in order to have leave request approved.  Felt further alienated who no one called to see how he was doing or return his calls, so left on leave without signature resulting in being counted as UA.  Went to Captain’s Mast resulting in CO indicating he was recommending separation due to incompatibility with service.  Taking celexa and Depakote which was started by Dr F_.  No psychiatry note in record; thus I am unclear whether pt should be taking both together, however his understanding is that he should (psychiatry on leave, unable to confirm).  Discussed possibility of bipolar and need for better monitoring.  Pt shared he saw a display on the brain and bipolar at the Smithsonian while on leave.  Feels there are many similarities.  Pt agrees to limited duty status.
	Assessment:  AXIS I:  296.80 Bipolar Disorder NOS (Provisional)
	Plan:  1) limited duty, 2) pt to Pt Admin, 3) follow-up 1 week, 4) follow-up with psychiatry re: Rx.  [Extracted from Applicant’s supporting documents].

0111xx:	Naval Hospital, Corpus Christi, TX:  Limited Duty Medical Board:
Psychiatric Chief Complaint:  “Basically when I am happy I am really up there and when I am not I am really low and can go from one extreme to the other very quickly.”
Family History:  Member’s brother has been diagnosed with bipolar disorder.  Recently informed his biological father may have had bipolar disorder as well.
Line of Duty:  Yes
Recommendation:  Psychiatric team recommends the service member serve an 8 month period of limited duty for further evaluation and stablelization; thus his case is being referred to the Central Physical Evaluation Board.  The team is of the opinion that the member is mentally capable of handling his own personal and financial affairs.  There is no known disciplinary action investigation processing or administrative discharge pending.  The member has been informed of the Board’s report.  Review of member’s record does not indicate a past finding of incompetence or incapacity.  Continued psychotherapy and psychopharmacological intervention is necessary. 
Diagnosis:  
Axis I   296-80 Bipolar Disorder NOS (Provisional)
Axis II V71.09 No Diagnosis
[Extracted from Applicant’s supporting documents].

011130:	Applicant acknowledged receipt of the nonjudicial action and understanding of his rights to appeal the imposition of nonjudicial punishment and elected not to make an appeal.

011206:	Psychiatrist, B.K. F_, LCDR, MC, USNR:  Chief Compliant:  Medicine management and diagnosis clarification.
Symptom:  Medication helpful for irritability and frequency of mood swings, but not optimal.  No/minimal transient SE.  Still with periods of depressed mood as manifested by increase in melancholic poetry.  Notes “you can even graph it, up and down, up and down, when you follow what I write about.”  Endorsed periods lasting at least one week (but usually only 2-3 days) of expansive and/or irritable mood, decreased need for sleep, pressured speech, racing thoughts, increase in goal-directed activities.  “I’ve been compared to R_ W_ more than once when I get this way.”  Also has periods of depressed mood that last at least 7 days and are manifested by depressed mood, altered sleep, fatigue, anhedonia, and poor concentration.  
Observation:  Pt……. feeling “a little depressed.”  Calm, thoughtful, slightly depressed affect.  No thought disorder.  No suicidal/homicidal ideations.  Judgment and insight good.
Assessment:  Previously diagnosed with Bipolar disorder NOS because did not meet time criteria for Bipolar I or II but did meet criteria for manic and depressive episodes.  Pt more insightful, more able to recognize symptoms now.  Will changed diagnosis to Bipolar I Disorder, most recent episode depressed, with rapid cycling, moderate, without psychotic features.
Plan:  1.  Safety:  not at serious risk for harm to self/others.  2.  Bio:  increase VPA to 1000 mg po qD increase Citalopram to 40 mg po qD.  
3.  Psychosocial:  continue with Dr. W_ for individual therapy.  4.  Dispo: follow-up 1-2 months.  [Extracted from Applicant’s supporting documents].

011217:	Commanding Officer, USS BLACK HAWK, reported to the CNP the nonjudicial punishment of the Applicant.  Commanding Officer’s comments:  I recommend that Lieutenant (Junior Grade) S_ (Applicant) be Detached for Cause from this command and not be returned to sea duty.  Furthermore, I feel that Lieutenant (Junior Grade) S_ (Applicant) should be required to show cause for retention.  While Lieutenant (Junior Grade) S_ (Applicant) is well intentioned, his performance in BLACK HAWK has not met the minimum expected of a Naval officer.  He has been counseled on numerous occasions, and has received two Letters of Instruction for various deficiencies.  In addition, due to a lack of confidence, he was relieved of his duties as First Lieutenant in August 2001 and reassigned as Assistant Chief Engineer in hope of improved performance.  Lieutenant (Junior Grade) S_ (Applicant) has personal problems which have affected his ability to perform in the stressful environment of a warship.  I feel strongly that sea duty in particular is not healthy for Lieutenant (Junior Grade) S_ (Applicant).  I do not feel confident that his continued service is beneficial to either himself or the Navy.”

020111:	Commander, Mine Countermeasures Squadron TWO forwarded Commanding Officer, USS BLACK HAWK’s letter concurring with the recommendation.

020221:	Commander, Mine Warfare Command, forwarded Commanding Officer, USS BLACK HAWK’s letter recommending approval.

020410:	Commander, Naval Surface Force, U.S. Atlantic Fleet, forwarded Commanding Officer, USS BLACK HAWK’s letter concurring with Commander, Mine Warfare Command, Commander, Mine Countermeasures Squadron TWO and Commanding Officer, USS BLACK HAWK that LTJG S_ (Applicant) be detached for cause and the he be required to show cause for retention.

020617:	Applicant advised that his reported nonjudicial punishment of 20 Nov 2001, for unauthorized absences and the Show Cause Authority reviewed his case and determined there is sufficient evidence of record to separate from naval service.  Applicant notified of intended recommendation for discharge with a recommended characterization of service as general (under honorable conditions) by reason of misconduct due to commission of a military or civilian offense, which, if prosecuted under the UCMJ, could be punished by confinement of six months or more and by reason of substandard performance of duty; specifically:
(1) Violation of the UCMJ, Article 86, unauthorized absence (2 specifications).
(2) Violation of the UCMJ, Article 133, conduct unbecoming an officer.  
(3) Failure to demonstrate acceptable qualities of leadership required of an officer in your grade.
(4) Failure to conform to prescribed standards of military deportment.  [Extracted from Applicant’s supporting documents].

020711:	LTJG S_ (Applicant)’s statement to Chief of Naval Personnel via Commanding Officer, USS BLACK HAWK.  [Extracted from Applicant’s supporting documents].

020807:	Psychiatry, R_ K. F_, LCDR, MC, USNR:  Chief Complaint:  Med Management and LIMDU follow-up.
	Symptom:  Doing well on current meds.  No side effects.  Overall good mood.  No nervous symptom.  Good mood control.  LIMDU time almost over.  Some fear of having difficulties if found fit for full duty. 
	Assessment:  Doing well overall.  Diagnosis (296.80 DSM-IV)  Bipolar Disorder NOS.  Pt has received max benefit from LIMDU.  Given pt on VPA, will initiate Medical Board.
	Plan:  1.  Safety:  Not at serious risk for harm to self/others.  2.  Bio:  Pt has enough meds for 15 Oct 02.  3.  Psychosocial:  no intervention. 
4.  Disposition:  Stable, follow-up for med refills.  [Extracted from Applicant’s supporting documents].

020816:	CNP recommended to the Secretary of the Navy, separate LTJG S_ (Applicant) from naval service with a general (under honorable conditions) discharge by reason of misconduct due to commission of serious offense.

020903:	Secretary of the Navy (ASN (M&RA)) approved discharge.

021008:	DD Form 214 issued.  Applicant discharged with a general (under honorable conditions) by reason of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20021008 with a general (under honorable conditions) for misconduct due to commission of a military or civilian offense which could be punished by confinement of 6 months or more (A and B).  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 (C and D).

Issue 1.  Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question.  No such impropriety or inequity is evident during the Applicant’s enlistment.  The Applicant contends that he served the United States well and he is entitled to an upgrade.  When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  A general discharge is warranted for behavior not sufficiently meritorious to warrant an honorable discharge.  The Applicant’s service was marred by nonjudicial punishment proceedings for a violation of Article 86 of the UCMJ for unauthorized absence for a period of 5 hours and a second period of 7 days.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy.  Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant implies that his diagnosed bipolar disorder sufficiently mitigates his misconduct to warrant an upgrade of his discharge.  The evidence of record indicates that the Applicant was diagnosed bipolar disorder, NOS, on 011121.  Subsequent to that diagnosis, the Applicant was referred to a medical board for evaluation for continued duty.  The Board recommended the Applicant be placed on limited duty.  In their findings the Board concluded that “[t]he team is of the opinion that the member is mentally capable of handling his own personal and financial affairs … [r]eview of member’s record does not indicate a past finding of incompetence or incapacity.”  Based upon this evidence, the Board concluded that the Applicant was legally responsible for his misconduct.  Although the Board agrees that the Applicant’s performance of his duties was likely impaired by his condition, the Board could not conclude that this impairment was of such a nature to relieve the Applicant of the responsibility for his misconduct.  As such, relief is not warranted.

The Applicant contends that he aggressively attempted to contact his ship to secure leave authorization and that his unauthorized absence was only 3 days in duration as opposed to 7 days.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of establishing his issues through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support his contentions that he attempted to secure leave authorization or that his unauthorized absence was only 3 days in duration.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Secretary of the Navy Instruction 1920.6B (ADMINISTRATIVE SEPARATION OF OFFICERS), effective 13 December 1999 until Present establishes policies, standards and procedures for the administrative separation of Navy and Marine Corps officers from the naval service in accordance with Title 10, United States Code and DoD Directive 1332.30 of 14 March 1997.

B.  In Appendix 12 of the Manual for Courts-Martial, a punishment of confinement for six months is authorized for violation of the Uniform Code of Military Justice, Article 86, unauthorized absence for a period of more than 3 days, not more than 30 days, if adjudged at a Special or General Court Martial.

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