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

FOR OFFICIAL USE ONLY

ex-ACAA, USN
Docket No. ND06-00807

Applicant’s Request

The application for discharge review was received on 20060519.  The Applicant requests the Discharge 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 20070315.  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 - ISSUES AND DOCUMENTATION

Issues

	Equity: Medical condition precipitated misconduct.

Documentation

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

Social Security Administration Notice of Award
Applicant’s DD Form 214 (State Director of Veterans Affairs-6)
Request for Supplemental Security Income Benefits

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20000718 - 20000726	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20000727		Date of Discharge:  20011113

Length of Service (years, months, days):

	Active:    01  03  17  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  17 

Years Contracted:  4 (12-month extension)

Education Level:  12				AFQT:  68

Highest Rate:  ACAA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NA*			Behavior:  NA*		OTA:  NA*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  None

* 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 1910-106 (formerly 3630650).

Chronological Listing of Significant Service Events: 

010904:	NAVDRUGLAB, Great Lakes, IL reported Applicant’s urine sample, received 010827, tested positive for THC.

010914:	Charges preferred for violation of the Uniform Code of Military Justice  (UCMJ) Article 86 (8 specifications), Spec 1: On or about 010824, fail to go to his appointed place of duty, to wit Branch Medical clinic; Spec 2: On or about 0645, 010802, absent himself from his organization until 0730; Spec 3: On or about 0800 hours, 010827, absent himself from his organization until 1130; Spec 4: On or about 0800 hours, 010828, absent himself from his organization until 1115; Spec 5: On or about 0800, 010904, absent himself from his organization until 0920; Spec 6: On or about 0745, 010912, absent himself from his organization until 1035; Spec 7: On or about 0745, 010913, absent himself from his organization until 0835; Spec 8: On or about 0745, 010914, absent himself from his organization until 1150; Article 92, On or about 010819, violate a lawful general order, by wrongfully possessing drug paraphernalia; Article 107, Make a false official statement to Air Traffic Controller Master Chief R_ L_, to wit: words indicating the existence of a dental/medical appointment; Article 112a, On or about 010819, wrongfully use marijuana; and Article 121, On or about 010819, steal 4 Zip 100 disk, 4 Vendor Catalog compact disks, and 13 Source One GSA Service compact disks, military property.  

010924:	Charges referred to special court-martial.

010925:	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 (8 specifications): Unauthorized absence; Article 92: Fail to obey lawful order on 010819; Article 107: False official statement on 010828; Article 112a: Wrongful use of marijuana; and Article 121: Steal military property.  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.

011004:	Chief of Naval Air Training 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 20011113 in lieu of a trial by court-martial (A) 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 (B and C).  The Board presumed regularity in the conduct of governmental affairs (D).

Equity – Medical condition precipitated misconduct: When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline.  The NDRB generally does not consider the circumstances surrounding the Applicant’s stated condition, the implied incorrect diagnosis, nor the medical treatment given to the Applicant to be of sufficient nature to excuse the Applicant’s misconduct.  In fact, the NDRB sees no connection between the Applicant’s misconduct and his medical condition.  While he may feel that his mental health condition was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The Applicant’s record contains a Request For Administrative Discharge In Lieu Of Trial By Court-Martial signed by him and his counsel on 20010925.  This request contains the following:
•	That the request was based on violations of the UCMJ (Article 86 Unauthorized absence; Article 92 Failure to obey order; Article 107 False official statement; Article 112a Wrongful use of controlled substance; and Article 121 Wrongful appropriation), to which he admitted guilt;
•	The he consulted with counsel;
•	That counsel explained the elements of the offenses;
•	That characterization of service may be under other than honorable conditions;
•	That a service characterization of under other than honorable conditions may deprive the Applicant of virtually all rights as a veteran, and he may expect to encounter substantial prejudice in civilian life.
The Applicant’s request for separation in lieu of trial by court-martial was appropriately endorsed and forwarded by the Commanding Officer, Naval Air Station, Kingsville, and subsequently approved by the Chief, Naval Air Training.  Since the Board could find no evidence of impropriety with the Applicant’s discharge process, relief on this basis is 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 post-service accomplishments or any other evidence related to the 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), Change 29, effective 
11 Jul 2000 until 21 Aug 2002, Article 1910-106 (formerly 3630650), 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 V, Para 502, Propriety.

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

D.  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 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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  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”.

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