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

 ex-SR, USNR 
Docket No. ND05-00112

Applicant’s Request

The application for discharge review was received on 20041022.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a personal appearance hearing discharge review before the Board in the Washington, D.C. Metropolitan area.  The Applicant did not list representative on the DD Form 293.  On 20051005 the Applicant submitted another DD Form 293, which designated the American Legion as his representative.

Decision

A personal appearance hearing discharge review was conducted in Washington, D.C. on 20060306.  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 3630650.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“Because I have Medical Issues that need to be handled.  Unless Upgrade of discharge Takes place I’m unable to receive that help, for a Incident That happen while serving in the United States Navy.  I had a accident in boot camp in Orlando Fla.  My Company Commander instructed me to not go to Medical because I would be sent home with no compensation For the time I had been there thus Far.  With only 3 days till graduation he instructed me to wait until I reached my permanent duty station to report the incident.  In doing so I built the wrong relationship with my superiors on the ship. Instead of help I was treated like I ways trying to get out of work.  Reporting the problem only brought me grief and more pain.  The problem was looked over repeatedly and nothing was ever done.  I tried to work thru the problem but Couldn’t, I’m still paying with the pain I Live with everyday, so obviously there is a problem, where the Navy said they didn’t see one.   The State of North Carolina acknowledges the problem, The Navy Wouldn’t take responsibility For it.  Instead they shifted the blame elsewhere where it could have been handled at the point of the problem.  I only ask for an Upgrade to receive Medical help and benefits due to me for the time + work I gave to the government.  No problems occurred in Military duty until the medical situation arose.  Instead of help I got pushed Away, And pumped full of pills.

Subsequent to the application the Applicant submitted additional issues:

“Upgraded needed to receive benefits due to me because of medical reasons.  Accident happened to me while in military that has crippled me for life.  Military is responsible.  Instead of being helped medically I was freed out of the military.  Now currently disabled can’t support my family unless discharge is upgraded to allow me to receive the proper benefits and help I deserve.”

The Applicant’s representative submitted no issues.

Documentation

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

Letter from North Carolina Department of Health and Human Services Division of 	Vocational Rehabilitation Services, dtd September 13, 2005
Certificate of Completion (Commercial Drivers License Class A Course) dtd, August 5, 1998 (not signed)
North Carolina Department of Human Services Division of Vocational Rehabilitation 	Services , Authorizations for Services (10 pgs)
Case Service Invoice dtd July 15, 1998
Invoice Receipt dtd July 15, 1998  
Health Insurance Claim Form (8 pgs)
Medical Receipt
Social Security Information Letter dtd September, 13, 2005 (2 pgs)
Medical Documents (7 pgs)

PART II - SUMMARY OF SERVICE

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

	Inactive: USA (DEP)	YYYYMMDD* - 19940125	COG	
Active:   None

(*Start date of USA DEP not in record.)

Period of Service Under Review:

Date of Enlistment:  940712		Date of Discharge:  950907

Length of Service (years, months, days):

	Active:    00  09  27 (Excludes lost time)
	Inactive:  None

Age at Entry:  21			Years Contracted:  8

Education Level:  12			AFQT:  43

Highest Rate:  SR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NOB*		Behavior:  NOB		OTA:  NOB

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  144

*Not Observed. 

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 3630650.

Chronological Listing of Significant Service Events:

940712:	Pre-service waiver for Army DEP attrite granted. 

941220:	Applicant UA 0700-0710, 941220 (10mins/S) from USS THEODORE ROOSEVELT (CVN 71).

941228:	Applicant UA from USS THEODORE ROOSEVELT (CVN 71).

950121:	Applicant surrendered onboard USS THEODORE ROOSEVELT (CVN 71) (24days).

950215:	Applicant AWOL this date from the USS THEODORE ROOSEVELT (CVN 71).

950316:	Applicant declared a deserter.

950322:	Applicant missed ship’s movement.
 
950323:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 950316 having been an unauthorized absentee since 0700, 950215 from USS THEODORE ROOSEVELT (CVN-71).

950619:	Report of Return of Deserter: Applicant apprehended by military authorities at 0930, 950614, (119 days) at Salisbury, North Carolina. Returned to military control, 1625, 950615 at TPU Norfolk, Virginia.

950811:	Medical Examination: Applicant evaluated by medical officer at Naval Station Brig, Norfolk and found to be competent; he understands OTH separation.

950907:	DD-214, Applicant discharged this date by reason of in lieu of trial by court martial with a characterization of under other than honorable conditions. 

001102:	NDRB documentary record review Docket Number ND00-00537 conducted.  Determination:  discharge proper and equitable; relief not warranted.

	Service Record did not contain the Administrative Discharge Package.
PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19950907 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 available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (D and E).

The Board found no indication from the service record and documentation provided by the Applicant that he was denied proper medical care for his condition while on active duty.  The Applicant’s request for separation in lieu of trial is not contained in the Applicant’s service record, but his DD-214 specifies that separation in lieu of trial is the narrative reason for discharge.  The Applicant requested 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 offenses for which he was charged and that he was guilty of the offenses.  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 medical condition and perceived lack of treatment 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.  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 NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, 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, is considered.  The Applicant provided documentation of his participation in vocational rehabilitation training, his medical treatment, and a statement from the Social Security Administration regarding his monthly disability benefits.  The Applicant's efforts need to be more encompassing than those provided.  For example, the Applicant could have produced evidence of continuing educational pursuits, documentation of community service, and certification of non-involvement with civil authorities, in order for consideration for clemency based on post-service conduct.  At this time, the Applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge.  Therefore, no relief will be granted.

The following is provided for the edification of the Applicant.  The Applicant has exhausted his opportunities for review by the NDRB.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 
22 Jul 94 until 2 Oct 96, Article 3630650, PROCEDURES FOR PROCESSING ENLISTED PERSONNEL FOR 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 86, unauthorized absence for a period more than 30 days, and Article 87, missing movement, 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