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

FOR OFFICIAL USE ONLY

ex-EOCA, USNR
Docket No. ND06-00911

Applicant’s Request

The application for discharge review was received on 20060627.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and the Narrative Reason for Separation be changed to “Medical.”  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 20070419.  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 and reason for 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

Decisional Issues

Equity:  The Applicant believes his medical condition was the contributing factor in his misconduct.

Documentation

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

Letter from Harlingen Spine and Neurological Surgical Institute, undated (2)
Applicant’s DD Form 214 (Member 4)
Letter from Applicant, dated July 25, 2006

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:  19981119		Date of Discharge:  20030306

Length of Service (years, months, days):

	Active:    04  03  18  (Does not exclude lost time.)
	Inactive:  00  00  20

Time Lost During This Period (days):

	Unauthorized absence:  1272 days
	Confinement:		          None

Age at Entry:  19

Years Contracted:  8

Education Level:  12				AFQT:  47

Highest Rate:  EOCA

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):  Navy Marksman Rifle Ribbon

* 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: 

981119:	Applicant commenced active duty.

990909:	NJP for violation of UCMJ, Article 86: Absence from unit, organization, or place of duty.
	Award:  Forfeiture of $350.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  Reduction suspended for 6 months.  No indication of appeal in the record.

990909:	Retention Warning:  Advised of deficiency (NJP for violation of Article 86.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

990910:	Applicant to unauthorized absence at 0630.

991011:	Applicant declared a deserter [extracted from NAVPERS 1070/613 Administrative Remarks page]

030205:	Applicant from unauthorized absence at 1530 (1272 days/apprehended).

030306:	DD Form 214:  Applicant discharged under other than honorable conditions in lieu of trial by court-martial, authority:  MILPERSMAN 1910-106.

Service Record did not contain the Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030306 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 Board presumed regularity in the conduct of governmental affairs (E).  

The Applicant claims his medical condition was the contributing factor in his 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 missed diagnosis, nor the medical treatment given to the Applicant to be of sufficient nature to exculpate the Applicant’s misconduct.  In fact, the NDRB sees no connection between the Applicant’s misconduct and his medical condition.  The Applicant’s misconduct began before his medical condition was discovered and is not related.  Relief is not warranted.

After a thorough review of the Applicant’s records, it was discovered the Administrative separation package was missing. Although the package was missing, the government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  The Applicant did not produce such evidence.  Relief 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 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), re-issued October 2002, effective 22 Aug 2002 until Present, Article 1910-106 (formerly 3630650), 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.

E.  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