ex-EN2, USN
ND07-00754

Current Discharge and Applicant’s Request

Application Received:  20070514	Characterization Received:  
Narrative Reason:  IN LIEU OF TRIAL BY COURT-MARTIAL 	Authority:  MILPERSMAN 1910-106

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1. Suffers from a mental condition that impaired his judgment. 
			2. VA upgraded his discharge and provided benefits   

Decision

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  IN LIEU OF TRIAL BY COURT-MARTIAL.

Date:  20071220		Location:  Washington D.C	 Representation:  

Discussion
Issue 1 ().  The Applicant contends that his service was honorable but his judgment was impaired because of a mental illness. The Applicant was diagnosed with "Bipolar Disorder" by competent medical authority at the Mental Health Clinic, Naval Medical Center, San Diego, CA.  Three months later, on 20051216 he commenced an unauthorized absence and was eventually apprehended and placed in pretrial confinement on 20060306.  The Applicant requested an administrative discharge for the good of the service to escape trial by court-martial.  In the request for discharge, the Applicant noted that his counsel had fully explained the elements of the offense for which he was charged and admitted that he was guilty of the offense.  He further certified a complete understanding of the negative consequences of his actions and that characterization of service would be under other than honorable conditions.  While he may feel that his mental condition was a factor that contributed to his actions, the record clearly reflects his disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board found that the evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The Reason for Discharge reflects the Applicant's mental health status at the time of his discharge, was proper and equitable at the time of issuance and his diagnosis of Bipolar Disorder was found not to mitigate the conduct for which he was discharged.  

Issue 2 (Equity).  The Applicant contends that the VA upgraded his discharge and provided benefits.  The Applicant is advised that the NDRB is not bound by decisions of the VA.  Furthermore, this is  which the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum for additional information regarding Service Benefits.

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 that 

 Summary of Service

Prior Service:
Inactive: USNR (DEP)	20010915 - 20020116  		Active:   	
Period of Service Under Review:
Date of Enlistment: 20020117	Years Contracted:  ; Extension:  	Date of Discharge:  20060411
Length of Service:  04  Yrs  00  Mths  12  Dys	Lost Time:  Days UA:  74	  Days Confined:  29
Education Level:  	Age at Enlistment:  	AFQT:  76	Highest Rank/Rate:  EN2
Evaluation marks (# of occasions):	Performance:  4.0(2)	Behavior:  4.0(2)	 	OTA:  3.67 
Awards and Decorations (per DD 214):  NDSM, GWOTSM, FLOC, GWOTEM, SSDR, NRMR, NPMR, GC

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

20050922	 NMCSD: Careplan note:  Diagnosis –Axis 1:Bipolar Disorder, r/o  mood disorder re to medical condition, Axis 3: 20lbs wt loss over 2 months, disorganized thoughts, uses metaphors during inappropriate times

20051216	 Applicant commence UA period

20060228	 Applicant apprehended

20060306:	Applicant to pre-trial confinement.

20060327	Charge sheet: Chg VUCMJ  Art 86,Applicant UA from 20051216 through 20060228 when apprehended

20060331	Applicant submitted request for SILT

20060404:	Applicant released from pre-trial confinement.

20060404	Request for SILT approved by CO Navy  Region SW TPU.

20061221	Medical consult: St Joseph Health CE,25 yo w/ history of Bipolar disease, does not provide information or answer questions; smiles and nods his head.  Manic for months w/ paranoid ideas, thinking people are following him, mother is trying to poison him and refused to speak with anyone; stated that 10 yr old brother was messy and threatened to attack him; family felt unsafe and brought him to the hospital; having outburst in the ER and had to be restrained; Assessment: Psychotic and Bipolar disorder.

Discharge Process

Charge(s) Preferred:  20060329
Charge(s) and Specification(s):
	Article 86: Without authority absent himself from his organization 20051216-20060228. 
	
Date Applicant Submitted SILT request:		20060331
	Consulted with Counsel:		
	Acknowledged Understanding Elements:	
	Acknowledged Guilt to:			Article(s) 86 
		BCD/DD authorized for offense(s)	
	Acknowledged Consequences of OTH:	
	Type of Characterization Requested:	

Commanding Officer Recommendation (date):	   (20060404)
	Reason for Discharge directed:		
	Characterization directed:			
Date Applicant Discharged:			20060411

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)  Administrative Decision dtd April 27, 2007, Letter to Senator K_ B_,  

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 31 May 2005 and Present, 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.

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