ex-SR, USN
ND06-00598

Current Discharge and Applicant’s Request

Application Received:  20060328 	Characterization Received:  
Narrative Reason:  separation in lieu of trial by court martial Authority:  MILPERSMAN 3630650

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:							Representative:  AMERICAN LEGION
1.  Undiagnosed mental health condition contributed to and mitigated misconduct.
2.  Post-service conduct.

Decision

By a vote of  the Characterization shall  .	
By a vote of  the Narrative Reason shall  IN LIEU OF TRIAL BY COURT MARTIAL.

Date:  20070919  		  	      Location:  Washington D.C.

Discussion

Issue 1 ().  When the service of a member of the U.S. Navy has met acceptable standards of performance and conduct, it is appropriate to characterize that service as honorable.  An under other than honorable conditions discharge is warranted when aspects of a servicemember’s performance or conduct constitute a significant departure from acceptable standards of performance and conduct.  The Applicant’s service was marred by nonjudicial punishment for failing to go to his appointed place of duty due to a prior overindulgence of alcohol, attempting to steal merchandise from a vending machine, and failing to report a fellow Sailor’s theft of, and damage to, an automobile, in violation of Articles 80, 86 and 92 of the UCMJ; an administrative discharge board recommendation for separation with a characterization of service as under other than honorable conditions; his admission to receiving stolen property in violation of Article 134 of the UCMJ; and his admission, during his personal appearance hearing, of using an hallucinogenic controlled substance in violation of Article 112a of the UCMJ during his service.  The Board was not persuaded that the Applicant’s subsequently diagnosed disorder, 10 years after his discharge, was a contributing and/or mitigating factor to his misconduct.  The Board noted that the Applicant had the assistance of competent counsel, with a duty to identify an issues of mental competence, in preparing his voluntary request for administrative separation in lieu of trial, and was evaluated by competent psychiatric authority to determine whether any mental conditions existed relevant to his request for discharge.  None were identified or found.  The Board also found that the Applicant apparently did not manifest in service the type of behavior which raised the issue of his mental health a decade later.  While the Board did not discount the potential merit of the Applicant’s issue, the evidence of record and that submitted by the Applicant did not demonstrate that his subsequently diagnosed disorder existed at the time of his discharge or was a factor in his misconduct.  The Board concluded that the Applicant competently and voluntarily requested separation in lieu of trial by court-martial, and that his request was properly and equitably approved by competent authority.

Issue 2 ().  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.  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.  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.  

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that 
Summary of Service

Prior Service:
Inactive: USNR (DEP)	19900228 - 19900702  		Active:   	
Period of Service Under Review:
Date of Enlistment: 19900703	Years Contracted:  ; Extension:  	Date of Discharge:  19920228
Length of Service:  01  Yrs  07  Mths  26  Dys	Lost Time:  Days UA:    Days Confined:  
Education Level:  	Age at Enlistment:  	AFQT:  66	Highest Rank/Rate:  SA
Evaluation marks (# of occasions):	Performance:  2.9(2)	Behavior:  2.9(2)	 OTA:  2.90 
Awards and Decorations (per DD 214):  NATIONAL DEFENSE SERVICE MEDAL

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

19900228:	Pre-service waiver for one (1) non-minor misdemeanor granted.  

19910822:	NJP -- Viol UCMJ Art 92 (2 Specs):  (1) 910720, failed to report as soon as possible to superior authority, and (2) 910809, failed to surrender his ID.  
	Viol UCMJ Art 86: 0545, 910807 failed to go to appointed place of duty:  morning muster.
	Viol UCMJ Art 80: 910809, attempted to obtain merchandise free from the vending machine by using tape to recover the dollar bill.
	Awarded – FOP $250.00 for 2 months: RIR (E-1); Restr and Extra duties (45 days). 

19910904:	Applicant notified of intended recommendation for separation under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

19910920:	Applicant elected to appear before an Administrative Discharge Board.

19911008:	Administrative Discharge Board recommended separation with a characterization of service as general (under honorable conditions).  

19911101:	Commanding Officer, Fleet Anti-Submarine Warfare Training Center, Pacific, recommended to BUPERS that Applicant be discharged, nonconcuring with Administrative Discharge Board recommendation of service characterization.  

19911104:	Applicant found physically qualified for separation.

19911114:	Applicant refused nonjudicial punishment.  [Extracted from Commanding Officer’s ltr dtd 19920206].

19911218:	Substance Abuse (Drug/Alcohol) Dependency Screening:
	Assessment:  Substance Dependence
	Plan:  Level Three – Residential rehabilitation ARC/ARS NDRC.

19911219:	Applicant requested treatment at Veteran’s Affairs Hospital prior to discharge.

19920101:	BUPERS advised that action on separation held in abeyance pending outcome of special court-marital.

19920130:	Mental Health Unit, NTC, San Diego, CA.  
	Diagnostic Impression:  I:  No mental illness, II:  No personality disorder requiring processing. III:  No known physical disorder.  
	Recommend/Opinion:  Member is not mentally ill and is considered responsible for his actions.  He is considered mentally competent to request an OTH discharge in lieu of trial by court-martial.  No psychiatric treatment is indicated.

Discharge Process

Charge(s) Preferred:  19911216
Charge(s) and Specification(s):
	Article 121: (7 specs) 19911027, steal sweatshirt ($60), walkman ($40), 7 CDs ($150), CD player ($200), battery 			                      powered car ($544), battery charger ($150), leather vest ($50).
	Article 134: (7 specs) 19911027, receive stolen property, sweatshirt ($60), walkman ($40), 7 CDs ($150), CD player 				       ($200), battery powered car ($544), battery charger ($150), leather vest ($50).
Charges Referred to SPCM:			19921216

Date Applicant Submitted SILT request:		REQUEST NOT DATED
	Consulted with or Waived Counsel:		
	Acknowledged Understanding Elements:	
	Acknowledged Guilt to:			Article(s) 134 
		BCD/DD authorized for offense(s)	
	Acknowledged Consequences of OTH:	
	Type of Characterization Requested:	

Commanding Officer Recommendation (date):	APPROVE (19920206)
Separation Authority (date):			COMMANDER, TRAINING CMD, PACFLT (19920214)
	Reason for Discharge directed:		
	Characterization directed:			
Date Applicant Discharged:			19920228

19970929:	NDRB documentary record review Docket Number ND97-00751 conducted.  Determination: discharge proper and equitable; relief not warranted.

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:	Service and/or Medical Record:  		Other Records:  

Related to Post-Service Period:  	
	Employment:  			Finances:  			Education: 		
	Health/Medical Records:  		Substance Abuse:			Criminal Records:  	
	Family/Personal Status: 		Community Service:  		References:  		
	
Additional Statements From Applicant:  	From Representative:    Other Documentation (Describe)  Certificate, Academy of Bartending; Certificate of Completion, Bartending School; Certificate, Black Belt; Excerpts from online articles regarding kickboxing competitions; South Carolina Department of Health and Human Services disability report; 

Pertinent Regulation/Law

A.  Naval Military Personnel Manual Article, (NAVPERS 15560C), effective 15 Aug 91 until 04 Mar 93, Article 3630650, Procedures For Processing Enlisted Personnel For Separation In Lieu Of Trial By Court-Martial.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity.

C.  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 134, Stolen property:  knowingly receiving, buying, concealing.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  You should read Enclosure (5) of the Instruction 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 Instruction 1332.28 and other Decisional Documents by going online at “http://Boards.law.af.mil.”

Additional Reviews:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the 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.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  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.

Employment/Educational Opportunities:  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 of the propriety and equity of the discharge.  

Reenlistment/RE-code:  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

Medical Conditions and Misconduct:  DoD disability regulations do not preclude a disciplinary separation.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record.  Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or “PTSD.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  

Automatic Upgrades - 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.  Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

Issues Concerning Bad-Conduct Discharges (BCD) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief.  With respect to a discharge adjudged by a court-martial, 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.  

Board Membership:  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