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

 ex-AQAR, USN
Docket No. ND02-00431

Applicant’s Request

The application for discharge review, received 020226, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to "discharge based on mental illness invalid for navy to discharge."  The Applicant requested a personal appearance hearing discharge review before a traveling panel closest to Los Angeles. CA.  The Applicant listed LA County Veterans Affairs as the representative on the DD Form 293.  In the acknowledgement letter to the Applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel, all hearings are held in the Washington, DC Area.  Applicant subsequently advised the Board that he would be unable to travel to Washington, D.C., for a personal appearance hearing; therefore, the case was converted to a documentary review.

Decision

A documentary discharge review was conducted in Washington, D.C. on 021029.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the Applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: BAD CONDUCT/Convicted by special court martial, authority: NAVMILPERSMAN, Article 3640420.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  I am requesting that my discharge be changed to Honorable. I was discharged with a Special Court Martial because the navy said I was mentally ill.  I understand that the navy cannot use mental illness as a way to discharge me from service. I was not given appropriate medical assistance for my conditions which was suicidal at time of service and discharge.  During prior service, I was of sound mind.  I understand that medical care was guaranteed by navy at time of my mental illness was apparent.  No medical assistance for the treatment of my illness was given by the Navy. This illness has taken more than 10 years from my life, if I had the medical care at that time, I feel strongly that my service would not have resulted in BCD discharge and that the discharge also affected my medical condition. The naval doctors who examined me prior to discharge did not recognize my condition.  In fact, he said I was fine that there was nothing wrong with me at that time.  I had told the doctor that I was suicidal.  The doctor did not offer further medical treatment and soon after I was discharged by Special Court Martial.

Documentation

The Applicant’s medical record was not available to the Board.  In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

None

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	820727 - 830623	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  830624		Date of Discharge:  870506

Length of Service (years, months, days):

	Active:    03  00  07
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  80

Highest Rate:  AQ3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NOB		Behavior:  NOB		OTA:  NOB

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  203

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

BAD CONDUCT/Convicted by special court martial, authority: NAVMILPERSMAN, Article 3640420.

Chronological Listing of Significant Service Events:

840720:	Retention Warning:  Advised of deficiency (Violation of Article 86, UCMJ), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

840720:	NJP for violation of UCMJ, Article 86: UA from appointed place of duty, to wit: SNM was UA from 0620 until 0710, 840607.
	Award:  Forfeiture of $162.00 pay per month for 1 month, reduction to E-3 (suspended for 6 months).  No indication of appeal in the record.

850409:	NJP for violation of UCMJ, Article 86: UA 850327 and 850403, violation of UCMJ Article 112: Wrongful use of cocaine 851227.
	Award:  Forfeiture of $396.00 pay per month for 2 months, 45 days restriction concurrent with 45 days extra duty, reduction to E-3, CAAC Evaluation, Psych Evaluation, 2.8 Special Evaluation, and page 13 entry.  No indication of appeal in the record.

850730:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 850728 having been an unauthorized absentee since 0700, 850627 from FITRON 24.

860117	Applicant apprehended by civil authorities.

860118:	Pre-trial confinement: 860118 to 860303.

860121:	Report of Return of Deserter.  Applicant apprehended by civil authorities on 860106.  Civil charges pending.  Returned to military control 860117 (1740) at FITRON 24.  Retained onboard for disciplinary action disposition.
 
860618:	Special Court Martial [trial dates 860210, 860303-860306]
	Charge I:  violation of the UCMJ, Article 85: Absent in desertion from 850731 to 860117(170 days/A).  Charge II: violation of the UCMJ, Article 86, (2 Specifications).
	Specification 1:  Unauthorized absence 850528 – 850624
	Specification 2:  Unauthorized absence 850627 – 850730 
	Findings:  to Charge I and specification 1 thereunder, guilty.  To Charge II and specification 1 thereunder, not guilty; specification 2 thereunder charge II, guilty. 
	Sentence:  CHL for 100 days, forfeiture of $426.00 pay per month for 3 months, reduction to E-1, Bad Conduct discharge.
	CA 860612:  Sentence approved and ordered executed except for bad conduct discharge.
	
860722:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.

860925:	COMA:  Request for appeal denied.  

870421:	SSPCMO:  Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.		

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 870506 with a bad conduct discharge due to conviction by a special court martial (A).  The Board presumed regularity in the conduct of governmental affairs (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:  In response to the Applicant’s issue, 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 (C, Part IV).  The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  The NDRB found the Applicant’s service record devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded.  The Applicant did not provide any documentation of post-service accomplishments to warrant relief based upon post-service clemency.  The NDRB determined the reason for discharge, convicted by special court martial, is most appropriate.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560), Change 1/83, effective 
28 Apr 83 until 14 Jun 87, Article 3640420, DISCHARGE OF ENLISTED PERSONNEL ADJUDGED BY SENTENCE OF COURT‑MARTIAL

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 "afls14.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard, D.C.  20374-5023