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

 ex-PNSR, USN
Docket No. ND04-01151

Applicant’s Request

The application for discharge review was received on 20040714.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to “permanent disability.”  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050102.  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 unanimous that the character and reason for 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 stated

Applicant’s issues, as stated on the application:

“1.  My discharge was inequitable based on my prior service.”
“2.  My discharge was inequitable because I believe that I had emotional/mental problems at & leading up to the time of my court-martial which I submitted in writing to the CMA as an exhibit.  However, I was never evaluated for any conditions.”
“3.  My discharge was inequitable because I was diagnosed with Bipolar Disorder by the VA while on appellate leave prior to my final discharge date, the VA found that my service & personal issues aggravated this condition while I was on active duty.  A condition I have been treated for since being diagnosed in 1996.”
“4.  My discharge was inequitable because I believe I had this condition since prior to entry on active duty.”
“5.  My discharge was inequitable because I was not offered any counseling services or methods of coping with situation being presented by the military.”       

Documentation

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

Applicant’s DD Form 214
Applicant’s DD Form 215
U.S. Navy –Marine Corps Court of Criminal Appeals Documents (6 pages)
Copies of Service Related Documents (33 pages)
Statement from Applicant to Court-Martial Convening Authority (9 pages)
Copy of Stipulation of Testimony (2 pages)
Copy of Department of Veterans Affair’s Decision of Disability (10 pages)
Applicant’s DD Form 214
Applicant’s DD Form 215
Letter from Applicant
Address Change Letter from Applicant
VA Forms 10-7978M (2 pages)
Progress Notes (13 pages)
GWIC Reports (2 pages)
VA Medical Records (14 pages)
WHHC Medical Records (2 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	870225 - 870423	COG
	Active:   USN 			870424 - 910213	HON
Active:   USN 			910214 - 940407	HON

Period of Service Under Review:

Date of Enlistment:  940408		Date of Discharge:  970725

Length of Service (years, months, days):

	Active:    03  03  17
	Inactive:  None

Age at Entry:  27			Years Contracted:  3 (3 months extension)

Education Level:  12 (GED)			AFQT:  92

Highest Rate:  PN2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (1)		Behavior:  4.00 (1)		OTA:  4.00

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, GCM, NAM(2), BATTLE”E”(2), SSDR, MUC(2)

Days of Unauthorized Absence:  270

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:
	
951128:	Special Court Martial
	Charge I:  violation of the UCMJ, Article 86, (2 Specifications).
	Specification 1:  Unauthorized absence 941223 – 950501, [130 days/S.]
	Specification 2:  Unauthorized absence 950519 – 951006, [140 days/A].  Charge II:  violation of the UCMJ, Article 134: Having been restricted to the limits of USS JOHN F. KENNEDY (CV-67) on 950519 break said restriction. 
	Findings:  to Charge I and specifications 1 and 2 thereunder, guilty.  To Charge II and specification thereunder, guilty.
	Sentence:  Confinement for 100 days, reduction to E-1, Bad Conduct discharge.
	CA 960529:  Sentence approved and, except for that part extending to a bad conduct discharge, will be executed, but the execution of that part of the sentence adjudging confinement in excess of 90 days is suspended for a period of 6 month from the date the sentence was adjudged, at which time, unless sooner vacated, the suspended part of the sentence will be remitted without further action.
	
970507:	NMCCCA:  The findings of guilty and sentence, as approved on review, are affirmed.  

970725:	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 in absentia on 19970725 with a bad conduct discharge which was the sentence adjudged by a properly convened special court-martial.  That sentence was subsequently approved by both the convening and appellate review authorities (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  

Issues 1-5.  The Applicant contends that his discharge was inequitable because of his prior service and due to issues relating to his disability.  In response to the Applicant’s issues, regarding a discharge adjudged by a court-martial case, 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.  

Concerning the Applicant’s subsequent medical condition and diagnosis, there is no evidence in the record to suggest that Applicant was not responsible for his misconduct or that he should not be held accountable for his actions.  Further, DoD disability regulations do not preclude a disciplinary separation.  Such separations normally supersede disability separations or retirements.  The Applicant was convicted of committing two serious offenses at special court-martial for unauthorized absences totaling 270 days.  His appeal to the Navy-Marine Corps Court of Appeal  based on ‘emotional/mental problems’ was reviewed and found to be without merit on 19970507.  After a thorough review of the Applicant’s record, issues submitted, and post service accomplishments, the Board determined that clemency was not warranted and that the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed.  Further, the Narrative Reason for Separation most correctly describes the reason the Applicant was discharged.  Relief denied

For the edification of the Applicant, the NDRB does not have the authority to change a narrative reason for separation to “disability” as requested.  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  The Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning relief in this matter.

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.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 
03 Oct 96 until 14 Dec 98, Article 3640420, DISCHARGE OF ENLISTED PERSONNEL ADJUDGED BY SENTENCE OF COURT‑MARTIAL

B.  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 86- unauthorized absence for more than 30 days.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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