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

 ex-OS1, USN
Docket No. ND04-01232

Applicant’s Request

The application for discharge review was received on 20040728.  The Applicant requests the characterization of service received at the time of discharge be changed to general (under honorable conditions).  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041222.  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 of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority: NAVMILPERSMAN, Article 1910-106 (formerly 3630650).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the first application:

1.  “I FEEL MY DISCHARGE UNDER “other Than Honorable Conditions” was inequitable because it was based on two isolated incidents within a two month period in 18 years of dedicated naval service.  I am requesting the Board take into consideration 18 years of good service and serious pending medical issues that still exist, and upgrade my discharge to “General” so that I may be allowed to continue receiving medical care that I desperately need for the rest of my life, and have the opportunity to receive Vocational Rehabilitation, in order to succeed in life outside the Navy.  I have no technical skills or advanced education which is of any benefit for employment in the civilian sector, and desperately need additional training to achieve any success outside the Navy.”

2.  “I have never done illegal drugs, and would not jeopardize an 18 year career and throw away all the medical benefits that I would have otherwise received if I’d been given the opportunity to complete 20 years of service and retire.  Unfortunately, due to the second incident that I was charged with, I didn’t have the opportunity to defend the first incident, and had no choice but to request a General Discharge and hopefully receive benefits from the VA, vice taking the risk of going to Court-Martial, receiving a BCD and not having the opportunity to receive any benefits at all.  Respectful request that the Board take my situation into account and honor my request to upgrade my discharge to General.”

Applicant’s issues, as stated on the second application:

3.  “Respectfully request the Board upgrade my discharge due to severe medical issues that are still pending and will always be apart of my life.  Please take into consideration my 18 years of dedicated Naval Service.”

Applicant’s Remarks on the second application:

“If the Review Board has any questions concerning my situation please do not hesitate to contact me.  The VA Regional Office in Baltimore, MD has told me that in order to get any rating for medical benefits, I will need to get my discharge upgraded to General: because of the discharge that I received, I have been unable to receive any medical attention, nor have I been able to find employment, and because of my length of time in service and age-37, it has been extremely difficult to avoid or explain why I was discharged.  BUPERS was supposed to receive a copy of all documents pertaining to my discharge from the navy and possibly make a determination as to possibly upgrading my discharge, but I have heard nothing from them.  At the time of my discharge, the Medical Boards Dept at NNMC told me that I was going to be put on permanent limited duty so as to complete my 20 year career and receive full benefits and continue to medically treated for my pending medical issues.  But as it stands now, I am getting absolutely nothing.  I would ask that the Review board take all things into consideration and grant an upgrade to my discharge.  If you have any Questions you’d like to ask LCDR L_, my Attorney who represented me while on active duty, he can be reached at the National naval Medical Center (xxx)xxx-xxxx.”

Documentation

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

Applicant’s Statement to CO, NatNavMedCen, Bethesda, MD dtd Nov 10, 2003
Applicant’s Defense Counsel ltr dtd Nov 10, 2003
Applicant’s request for Separation In Lieu of Trial by Court-Martial dtd Nov 10, 2003
Applicant’s second application (DD Form 293) received Aug 6, 2004
Applicant’s DD Form 214 (Member – 1 and Member – 4)
Applicant’s Medical Board Report dtd Sep 2, 2002 (10 pages)
Applicant’s Medical Board Addendum (Neurology) dtd ct 28, 2003 (10 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR 		851006 – 850606	To Report Active Duty
	Active:    USNR		850607 – 880606	Released AcDu
	Inactive:  USNR		880607 – 880629	HON
	Inactive:  USNR (DEP)	880630 – 881011	COG
	Active:    USN			881012 - 940505	HON (to reenlist)

Period of Service Under Review:

Date of Enlistment:  940506		Date of Discharge:  031212

Length of Service (years, months, days):

	Active:    09  07  07 (Doesn’t exclude lost time)
	Inactive:  None

Age at Entry:  27		Years Contracted:  6 (extensions cannot be 
verified)

Education Level:  12			AFQT:  73

Highest Rate:  OS1

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.0 (11)	Behavior:  4.0 (11)		OTA:  3.83

Military Decorations:  None

Unit/Campaign/Service Awards:  MUC, SSDR (4), AFEM, NMCAM(2), AFEM (Iraq OSW), NDSM(2), HSM, GCM(4), Enlisted Warfare Specialist Insignia

Days of Unauthorized Absence:  22

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

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority:  NAVMILPERSMAN, Article 1910-106 (formerly 3630650).

Chronological Listing of Significant Service Events:

940506:	Reenlisted for term of six years with an expiration of active duty date of 
		000505.

960921:	Retention Warning:  Advised of deficiency (violation of UCMJ, Article 111 – drunken driving), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

990504:	Unauthorized absence from USS ABRAHAM LINCOLN (CVN 72).

990525:	Returned onboard this date.

010625:	On limited duty at National Naval Medical Center, Bethesda, MD.

020902:	NATNAVMEDCEN Bethesda, MD, Medical Board Report:
	Primary Diagnosis:  Status Post Motor Vehicle Accident with Multi Trauma
	Second Diagnosis:  Closed Head Injury with Traumatic Brain Injury, with Frontal Contus
	Third Diagnosis:  Traumatic Right Sensorineural Hearing Loss with Tinnitus
	Fourth Diagnosis:  Post Concussive Headaches
	Indicated Disposition:  Refer to PEB (Physical Evaluation Board)
	[EXTRACTED FROM APPLICANT’S SUPPORTING DOCUMENTATION]

030613:	NATNAVMEDCEN Bethesda, MD, Medical Board Report (3rd dictated board):
	Primary Diagnosis:  S/P MVA W/Multiple Trauma in Nov 2000
	Second Diagnosis:  Closed Head Injury/Traumatic Brain Injury 
	Third Diagnosis:  Traumatic Right Sensorineural Hearing Loss
	Fourth Diagnosis:  Persistent Headaches
	Fifth Diagnosis:  Sinus Disease, S/P Sinus Surgery
	Sixth Diagnosis:  Cervical Spondylosis
	Indicated Disposition:  Refer to PEB (Physical Evaluation Board)

031006:	Medical Board Addendum (Neurology):  Medical Board respectfully suggests that although the patient be referred to the Physical Evaluation Board for assessment of fitness for duty, that the Physical Evaluation Board consider the patient suitable for continuation of permanent limited duty to complete 20 years of service.  [Extracted from Applicant’s submitted documentation]

030808:	NAVDRUGLAB reports Applicant’s urine tested positive for cocaine.  [Extracted from CO’s letter dated 031110]

031014:	Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 121 (2 Specifications):
Specification 1:  On active duty, did, at National Naval Medical Center, Bethesda, MD, on or about 23 August 2003, steal an IBM desktop computer with an installed modem, an NEC 17 inch monitor, two speakers, keyboard, two computer mice, and computer cables, all of an approximate value $1,000.00, the military property of the U.S. Government.
Specification 2:  On active duty, did, at National Naval Medical Center, Bethesda, MD, on or about 23 August 2003, steal computer software consisting of Norton Anti Virus Corp Edition Diskeeper and Windows 2000 Pro Office Suite, all of an approximate value of about  $680.00, the military property of the U.S. Government.
Additional charge:
Violation of the Uniform Code of Military Justice (UCMJ) Article 112a:  On active duty, did, at or near National Naval Medical Center, Bethesda, MD, on or about 28 April 2003, wrongfully use cocaine.

031110:	Applicant requested an administrative discharge in lieu of a trial by court-martial.  Applicant understood that his discharge could be characterized as under other than honorable conditions, but requested consideration for a General (Under Honorable Conditions).   He consulted with counsel and was fully advised of the implications of his request.  The Applicant stated he understood the elements of the offenses with which he was charged, and admitted he was guilty of all the charges preferred against him.  Specifically, he admitted to violating UCMJ, Article 121:  Wrongful Appropriation of Military Property and to violating UCMJ, Article 112a:  Wrongful Use of a Controlled Substance.  The Applicant stated he was completely satisfied with the counsel he had received.  The Applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veterans' benefits based upon his current enlistment, and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing.  

031110:	Applicant’s Personal Statement supporting request for separation.

031125:	Commander, National Naval Medical Center, Bethesda, exercising GCMCA, approved the request for an administrative separation in lieu of a trial by court-martial, and directed Applicant’s discharge under other than honorable conditions.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20031212 under other than honorable conditions in lieu of a trial by court-martial (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

Issues 1-3:  The Applicant states his discharge was based on two isolated incidents in “18 years of dedicated naval service.”  Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  On 20031110, the Applicant requested discharge for the good of the service to escape trial by court-martial.  In the request the Applicant noted that his counsel had fully explained the elements of the offenses for which he was charged and that he was guilty of the charges.  He further certified a complete understanding of the negative consequences of his actions and that characterization of service could be under other than honorable conditions.  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.  Relief denied.
 
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 the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  Evidence of continuing educational pursuits, a positive employment record, a drug free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.   

The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board (NDRB).  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veteran’s benefits and this issue does not serve to provide foundation upon which the Board can grant relief.  

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.  The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time.  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), re-issued October 2002, effective 22 Aug 2002 until Present, Article 1910-106 (formerly 3630650), SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

B.  A punitive bad conduct discharge may be adjudged for violation of the Uniform Code of Military Justice, Article 121, wrongful appropriation of military property, upon conviction by a Special or General Court-Martial, in accordance with the Manual for Courts-Martial.

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.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

E.  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