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

  ex-SA, USN
Docket No. ND05-00321

Applicant’s Request

The application for discharge review was received on 20041210.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requested a documentary record review.  The Applicant listed a civilian counsel as the representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that he was approaching the 15-year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington D.C. area.  Applicant did not respond.  

Decision

A documentary review was conducted in Washington, D.C. on 20050214.  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/Separation 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:

1.  “Servicemember had an undiagnosed mental illness at the time of discharge that affected the circumstances resulting in less than honorable conditions.  See attached statement.”

Additional issues submitted by Applicant’s counsel (Civilian):

2.  “Summary and Request for Relief

Enclosed with this attachment please find Form DD293, Application for Review of Discharge from the Armed Services of the United States, of Seaman Apprentice F_ E_ H_ (Applicant).  SA H_ (Applicant) received a discharge on April 18, 1991 under less than honorable conditions in lieu of a court martial for Absence Without Leave and Desertion.

The basis for SA H_’s (Applicant's) request for a change in his discharge status is that the events leading to his discharge were the direct result of an undiagnosed and untreated mental condition that, if diagnosed and treated at the time, would have materially - and positively - affected his eventual disposition and discharge from the Navy.  The Navy was on notice of the condition but did not conduct a psychiatric examination prior to discharge.

SA H_'s (Applicant's) mental condition continued to cause substantial problems during the period from his discharge until his eventual diagnosis and treatment.  It was not until 1995 that SA H_ (Applicant) was diagnosed and treated for the mental condition.  As a result of this treatment, his life dramatically changed for the better and he has shown substantial successes in every area of his life.  SA H_ (Applicant) believes that, had the Navy recognized his condition and treated him, he could have, and would have attempted to, become an exemplary seaman.  At the least, SA H_ (Applicant's) condition would have been recognized as the underlying cause of his actions and he would have received consideration for this in his subsequent discharge.

Statement of Facts - Military Record (exhibits enclosed)

Franklin Eugene H_ (Applicant) entered into a Delayed Enlistment Program in Decatur, Georgia in 1989 and remained in the Delayed Enlistment Program for two months and eight days before entering active duty on August 3, 1989.  Mr. H_ (Applicant) was initially transferred to the Great Lakes Training Facility for his basic training in the U.S.  Navy.

Subsequent to his completion of the basic training program, Frank H_ (Applicant) was promoted to Seaman Apprentice and transferred to his “A” school assignment at the Great Lakes Training Facility.  He completed his Electrical/Mechanical Repairman specialty with the rest of his class and, upon graduation, Seaman Apprentice H_ (Applicant) was transferred to duty on the U.S.S. San Diego.

On December 17, 1989, SA H_ (Applicant) was granted a leave request to attend a funeral.  He subsequently received a hardship extension for six months and was ordered to report to the Naval Reserve Center in Knoxville, Tennessee.  SA H_ (Applicant) did not report as ordered at 0700 on January 14, 1990 and was listed as Absent Without Leave.  He voluntarily surrendered himself to federal military authorities at Norfolk, Virginia on March 23, 1990.  Initially, he was retained on board but was listed as a deserter on April 16, 1990 and set for court martial.

SA H_ (Applicant) left Norfolk, Virginia, without leave, and returned to Jefferson City, Tennessee.  He was apprehended by civil authorities in Tennessee on February 20, 1991, on a military warrant (no civil charges) and was housed in the Jefferson County detention center and Knox County jail respectively until transferred to Naval custody on February 23, 1991.  SA H_ (Applicant) was subsequently discharged under other than honorable conditions in lieu of court martial.  The discharge was granted on April 18, 1991.

Statement of Facts/Explanation of Events Leading to Discharge (Exhibits Enclosed)

At the age of two weeks old, Frank H_ (Applicant) was abandoned and later orphaned.  From this time until his entry into the Navy, SA H_ (Applicant) was raised by his paternal grandfather, F_ L _ H, and grandmother, V_ H_.  SA H_’s (Applicant's) grandparents were his surrogate parents, his relationship with them was very strong and much of his emotional support was tied to their support and guidance.

On December 17, 1989, while stationed in France on the U.S.S.  San Diego, SA H_ (Applicant) first learned of his F_ H_’s death.  Highly distraught over the loss of his grandfather, SA H_ (Applicant) asked for shore leave for the purpose of attending the funeral.  The U.S.  Navy granted this request and SA H_ (Applicant) arrived in Jefferson County, Tennessee shortly thereafter.

Shortly after his arrival, but prior to the termination of his shore leave, SA H_ (Applicant) received a second major shock when V_ H_ suffered a severe heart attack - almost certainly prompted by the recent death of her husband.  At this time, SA H_ (Applicant) applied for, and received, permission for an extended stay in eastern Tennessee.  Upon application, he was granted a hardship transfer for six months to the Naval Reserve Center at Knoxville, Tennessee and was ordered to report to that station on January 14, 1990.  By this time, however, the stress resulting from the death of his grandfather, and subsequent severe heart attack of his grandmother, had sent SA H_ (Applicant) into a state of acute and severe depression.  Further, his grandmother was now totally dependant on Mr. H_ (Applicant) for her care and this dependence severely impacted him emotionally.  As a result, SA H_ (Applicant) failed to report as required and was subsequently listed as a deserter by the U. S. Navy.

Approximately two months later, after the initial shock and stress were over, and his depression lifted somewhat, SA H_ (Applicant) drove to Norfolk, Virginia, and voluntarily surrendered himself to military authorities.

H_ (Applicant) was initially returned to duty on the U.S.S. San Diego awaiting disposition.  He had initially hoped that he would receive consideration for his misfortunes and be allowed to return to his naval service, albeit after receiving correction for his failure to report, but was informed that he would be standing trial by court martial for desertion.  Already under the influence of the acute depression of his previous tragedies, this started the cycle of stress and acute depression once again and SA H_ (Applicant) left his duty station to return to Jefferson City.

SA H_ (Applicant) was apprehended by civil authorities and was subsequently transferred to military jurisdiction February 20, 1991, and was held by the United States Navy pending trial by court martial.  At some point during this period, SA H_ (Applicant) was offered and accepted discharge from the United States Navy under less than honorable conditions in lieu of a court martial.  Prior to his discharge, an exit interview was conducted on April 4, 1991 and SA H_ (Applicant) indicated on his questionnaire that he suffered from depression.  (During both periods of time that SA H_ (Applicant) was awaiting court martial, he complained repeatedly to the chaplain of intense and chronic depression.) However, the medical officer did not recommend him for a psychiatric examination as should have been done but instead certified him as fit for discharge.

It is particularly unfortunate that SA H_ (Applicant) was not given a psychiatric examination nor received treatment for depression as his mental condition began to manifest itself in other troubles in Mr. H_'s (Applicant's) life from this time forward.  Mr. H_ (Applicant) became increasingly incapable of dealing with everyday affairs and relationships resulting in severe personal difficulties until the year 1995.

In June of 1995, subsequent to the discovery that his spouse had been having an affair for an extended period of time, Mr. H_ (Applicant) sought and received treatment at the Overlook Center in eastern Tennessee.  Mr. H_ (Applicant) was examined by Dr. B_ and Dr. D_ at the center.  The doctors diagnosed Mr. H_ (Applicant) with acute and chronic depression and prescribed Prozac, Lorazepam and Hydroxicine Pamoate.  This depression was so severe that, upon the doctor’s recommendation, Mr. H_ (Applicant) was declared to be disabled by the Social Security Administration.

The effects of diagnosis and treatment on Mr. H_ (Applicant) were substantial and virtually immediate.  As a result, Mr. H_ (Applicant) began attending college at Pellissippi State Community College.  Most importantly, Mr. H_ (Applicant) voluntarily released himself from disabled status and entered into the workforce.  His employment history is as follows:

EDS - Technical Support Analyst - 10/1997-9/1999
Clientlogic - Technical Support Analyst - 10/1999-2/2001
Breed Technologies - Information System Specialist - 8/2002-2/2003
TotaleMedlEdix - Help Desk Technician - 4/2003-12/2003
Volunteer with Red Cross, YMCA

Closing Statement

SA H_ (Applicant) requests that United States Navy reconsider his discharge on the basis of the information provided above.  Mr. H_ (Applicant) has had a predisposition towards this mental condition all his life which was finally triggered and became severe when the two persons most responsible for his emotional stability and security died or became severely ill.  There was an indication at the time of his discharge that Mr. H_ (Applicant) suffered from this severe mental condition but SA

H_ (Applicant) was never examined regarding his complaints of extreme depression.  Had Mr. H_ (Applicant) received a psychiatric examination at the time of his exit interview by the United States Navy, matters would have stood very differently.  It is entirely probable that his condition would have been discovered and treated.  Once treated, SA H_'s (Applicant’s) conduct would have taken the same positive course that he has experienced subsequent to his later treatment and, at the very Lease, the United States Navy would have considered a discharge under other than honorable condition to be inappropriate.

It is clear from Mr. H_'s (Applicant's) records of post diagnosis and treatment, that this mental condition is largely responsible for his troubled state and subsequent actions.  His successes in education and employment further bolster the necessity of a review of his record and a change of his discharge status to honorable.”

Documentation

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

Applicant’s DD Form 214 (5)
Thirty-five pages from Applicant’s service record
Applicant’s resumé (3 pages)
Twenty pages from Applicant’s civilian/post service medical record
Twenty-three pages from Applicant’s military medical record
Letter from Applicant’s counsel, dtd January 11, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	890525 - 890802	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  890803		Date of Discharge:  910418

Length of Service (years, months, days):

	Active:    01  08  17	(Does not exclude lost time)
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  11 (GED)		AFQT:  32

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA*		Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  380

*No marks assigned

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

UNDER OTHER THAN HONORABLE CONDITIONS/separation in lieu of trial by court martial, authority:  NAVMILPERSMAN, Article 3630650.

Chronological Listing of Significant Service Events:

890809:	Retention Warning: Advised of deficiency (Non-swim qualified), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

900114:	Applicant to unauthorized absence 0800, 900114.

900114:	Applicant declared a deserter.

900323:	Applicant from unauthorized absence 2030, 900323 (69 days/surrendered).  EAOS changed to 931009.

900416:	Applicant to unauthorized absence 0700, 900416.

900516:	Applicant declared a deserter.

910220:	Applicant apprehended by civilian authorities 1615, 910220 at Jefferson, TN and returned to military control 1625, 910220.  Lodged in Jefferson County Detention Center to await escorts.

910220:	Applicant from unauthorized absence 1625, 910220 (311 days/apprehended).  EAOS changed to 940815.  Restored to full duty.

910409:	Medical Officer found Applicant fit for separation and that a psychiatric evaluation is not warranted as part of the evaluation processing.  

910418:	DD Form 214: Applicant discharged under other than honorable conditions by reason of separation in lieu of trial by court martial.

Applicant’s separation package missing from service record

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19910418 under other than honorable conditions in lieu of a trial by court-martial (A and B).  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 (C and D).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (E).

Issues 1 & 2:  The Applicant’s counsel implied that the Applicant had an undiagnosed mental illness at the time of discharge that affected the circumstances resulting in less than honorable conditions.  The Board found no evidence in the Applicant’s medical records of any mental illness while on active duty.  On 19910401, the Applicant stated on Standard Form 93 (Report of Medical History) that his present health was “fine”.  In addition, on 19910409 the Director of Sewells Point Branch Medical Clinic, Naval Station Norfolk, VA certified that a psychiatric evaluation was not warranted as part of the evaluation and separation process and that the Applicant was fit for separation.  Relief denied.

A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor.  The Applicant’s service was marred by two periods of unauthorized absences totaling 380 days.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service.  Relief denied.

The following is provided for the edification of the Applicant.  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 naval service.  The NDRB is authorized, however, 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 should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  The Applicant’s evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his discharge.   

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 additional documentation to support any claims of post-service accomplishments or any other evidence relating 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 15560A), Change 7, effective 
25 May 89 until 14 Aug 91, 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 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 V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

E.  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