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

FOR OFFICIAL USE ONLY

     ex-BMSN, USN
Docket No. ND05-01446

Applicant’s Request

The application for discharge review was received on 20050829.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.  Subsequent to the application the Applicant elected American Legion his representation. 

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060512.  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 a trial by court-martial.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application and/or attached document/letter:

“I was injured while active duty, had surgery on my spine, herniated disk My injury is coming back, I need to be seen by a doctor before it gets worst, before my discharge doctor gave me a choice medical/disability I stayed in active duty, I have a hard time walking and my back is constantly in pain, its really difficult for me to do any daily routine, I am a Gulf War Veteran, injured my back on board the USS MISSOURI (BB 63)... Thank you for your kind consideration. BSSN M_ R_(Applicant)”

Submitted by Applicant subsequent to submission of application:

“To Whom It May Concern,

My name is M_ R_(Applicant), I am writing you this letter because I am requesting review on my end of service discharge from (OTH) Other Than Honorable to (GH) General Honorable, due to medical reasons.  I made 1 mistake in my decision while I was in the Navy  The 4 years I was enlisted, I gave the Navy  100% of me, which resulted in an injury to my back.  I was treated very well by our doctors, they performed a major surgery on my back, the procedure came out real well, but the pain is coming back, it comes back once in a while.  At least yearly, sometimes the pain could be unbearable and I am seeking medical help from (VA) Veteran Admin, unfortunately due to the nature of my discharge the VA is not able to help me out.  I need your help in granting me General Honorable.  As so I can continue with my life as a productive member of my community and to my family.  I am requesting forgiveness of my youth indiscretion.
Hoping for Your Kind Consideration
M_ R_(Applicant)
(Home telephone number excluded)

Additional issues submitted by Applicant’s representative (American Legion):

Equity Issue:  Based on our review of evidentiary record and on behalf of this former member, we request that the Board also consider provisions of SECNAVINST 5420.174D, Part V, Paragraph 503, as it pertains to post-service conduct, in assessing the merits of this application.

In accordance with Title 32, CFR, Section 724.116 and SECNAVINST 5420.174D, Part I, Paragraph 1.20, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue(s) and following statement in supplement to the Applicant’s petition.

Review of the service records reflect that this former member maintained satisfactory 3.60 performance / 3.60 conduct markings and earned the Navy “E” Ribbon, the Combat Action Ribbon, Sea Service Deployment Ribbon, National Defense Service Medal, Kuwait Liberation Medal, and the Southwest Asia Service Medal. Following due process notifications, he was discharged Under Other Than Honorable Conditions due to misconduct as authorized by NAVMILPERSMAN, Article 1910-146.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because he suffers from a disabling back condition which he received while serving in the Navy.  An honorable discharge would allow him to seek VA medical attention.  He has not submitted additional documentation for consideration.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by Title 10, USC, Section 1553 and set forth in Title 32, CFR, Part 724 and SECNAVINST 5420.174D.

This case is now respectfully submitted for deliberation and disposition.

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Letter to Applicant from National Personnel Records Center, dtd September 16, 2005
Applicant’s DD Form 214
Applicant’s social security statement, dtd July 29, 2005
Character Reference ltr from C_ R_, Applicant’s wife, undtd
Character Reference ltr from G_ M_, dtd September 28, 2005
Character Reference ltr from B_ C. S_, Jr, BM3, dtd September 26, 2005
Character/Job Reference ltr from T_ A. B_, dtd September 26, 2005
Letter from Applicant, dtd October 26, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive:  None
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19890912		Date of Discharge:  19940812

Length of Service (years, months, days):

	Active:    04  11  01  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  268 days
	Confinement:		  *NA 

Age at Entry:  22

Years Contracted:  6

Education Level:  12 ½ 			AFQT:  44

Highest Rate:  BMSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.6 (5)			Behavior:  3.6 (5)		OTA:  3.60

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Navy “E” Ribbon; Combat Action Ribbon; Sea Service Deployment Ribbon; National Defense Service Medal; Kuwait Liberation Medal; Southwest Asia Service Medal

* Not available

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

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority:  MILPERSMAN, Article 3630650.

Chronological Listing of Significant Service Events: 

890918:	Applicant briefed on Navy's policy of drug and alcohol abuse.

910627:	NJP.  No further information found in service record.  [Extracted from NAVPERS 1070/609, Enlisted Performance Record.]

910714:	Retention Warning:  Advised of deficiency (Writing worthless checks and dishonorably failing to maintain funds on 03Jun91.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

930323:	Retention Warning:  Advised of deficiency (PRT failure/failure to participate in PRT.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

930604:	Retention Warning:  Advised of deficiency (Unauthorized absence.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

930604:	NJP for violation of UCMJ, Article 86 – Unauthorized absence.
	Date of Offense: 22 May 1993.
	Award:  Forfeiture of $100 per month for 2 months, restriction for 15 days.  No indication of appeal in the record.

930923:	Applicant to unauthorized absence at 0700 on 930923.

931022:	Applicant declared a deserter.

940619	Applicant from unauthorized absence at 0203 on 940619 (268 days/apprehended).

940619:	Confinement physical.  Significant surgical history:  Lower back, slipped disc (1991).  Applicant admits to ETOH treatment in 1992.  Applicant found fit for confinement.  Follow up required:  Applicant to be seen by MO within 24 hours.

940619:	Applicant to confinement.

940630:	Applicant found qualified for release from active duty.

940714:	Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 86:  In that Boatswain’s Mate Seaman M_ E. R_(Applicant), U.S. Navy, Transient Personnel Unit, Naval Station Treasure Island, San Francisco, California, on active duty, did, on or about 23 September 1993, without authority, absent himself from his unit, to wit: USS Anchorage, located at Naval Amphibious Base Coronado, San Diego, California, and did remain so absent until he was apprehended on or about 19 June 1994.

940714:	Charges referred to special court-martial.

940726:	Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.  He consulted with counsel and was fully advised of the implications of his request.  The Applicant stated he understood the elements of the offense(s) with which he was charged, and admitted he was guilty of all the charges preferred against him.  Specifically, he admitted to violating UCMJ, Article 86: Specification: On or about 23Sep93, without authority, absent himself from his unit, and did remain so absent until he was apprehended on or about 19Jun94.  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.  

940801:	Applicant’s charges dismissed.

940801:	The Commanding Officer, 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.

*Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19940812 in lieu of a trial by court-martial (A and B) with a service characterization of under other than honorable conditions.  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).  

The Applicant contends that he made one mistake in his 4 years of service. The NDRB advises the Applicant that in a signed statement, the Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.  He consulted with counsel and was fully advised of the implications of his request.  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 may have a bearing.  The Applicant stated he understood the elements of the offenses with which he was charged.  He admitted he was guilty of violating Article 86(UA 268 days). The NDRB further advises the Applicant that certain serious offenses warrant separation from the Navy in order to maintain proper order and discipline. Violations of Article 86 are considered serious offenses and typically warrant a punitive discharge if adjudged at a special or general court-martial.

The Applicant states that he gave the Navy 100% that resulted in a back injury and is requesting an upgrade so he may seek medical help from the VA. The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 Naval service.  The NDRB is authorized 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.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct, which precipitated the discharge.  Relief denied.
 
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 additional evidence related to this 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 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 [e.g., 86, unauthorized absence for a period more than 30 days] 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.

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