ex-MMFN, USN
ND06-01040

Current Discharge and Applicant’s Request:

Application Received:  				20060803
Narrative Reason for Separation:			IN LIEU OF TRIAL BY COURT MARTIAL
Character of Service:				
Discharge Authority:				MILPERSMAN 3630650
Last Duty Assignment/Command at Discharge:	USS LASALLE (AGF-3)	     

Applicant’s Request:
Characterization change to:		GENERAL (UNDER HONORABLE CONDITIONS), ENTRY LEVEL SEPARATION
Narrative Reason change to:			NONE REQUESTED
Review Requested:				
Representation:  					

Decision:

Date of Decision:					20070628     
Location of Board:				Washington D.C.
Complete Service Record:				
Complete Medical Record:			
Complete Discharge Package:			
Regarding propriety, the Board found the discharge:	
Regarding equity, the Board found the discharge:	EQUITABLE	

By a vote of  the Characterization shall  .	
By a vote of  the Narrative Reason shall  .

Summary of Service:

Prior Service:
Inactive: USNR (DEP)				19980731 - 19981025 
Active:   NONE
Period of Service Under Review:
Date of Enlistment:  				19981026
Years Contracted:  				;        
Date of Discharge:				20001128
Length of Service
	Active:					02  Yrs  01  Mths   03  Dys  (does not exclude lost time)
Time Lost During This Period:			
Days Unauthorized Absence:		314
Days Confinement:			NONE	        

Education Level:  				
Age at this Enlistment:  				
AFQT:  						51
Highest Rate/Rank:				MMFN

Performance Evaluation Averages (number of marks):
Performance:					NOT FOUND IN RECORD
Behavior:					NOT FOUND IN RECORD 
OTA:						NOT FOUND IN RECORD

Awards and Decorations (as listed on the DD Form 214):
NATO SERVICES KOSOVO MEDAL

Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

19991113:	Applicant to unauthorized absence.  [Extracted from DD Form 214, Block 29.]

19991124:	Applicant declared a deserter.

20000921:	Applicant from unauthorized absence.  [Extracted from DD Form 214, Block 29.]

Medical Record Entries Related to Characterization of Service or Narrative Reason for Separation

19990825:	USS EMORY LAND.  Applicant referred to medical due to suicidal ideation.  Multiple stressors; parents, fiancée’s health, financial problems, recent drug use and pending possible legal action.  Drug history admitted at 15 years old to psych ward for “violence, drugs, behavior” (not on Enlistment physical exam).

19990827:	Naval Hospital Naples.  Applicant was medevac from USS LASALLE due to acute SI’s /HI’s.  He was evaluated at Naval Hospital Naples ER and hospitalized on Ward 2b and placed on a 1:1 suicide/homicide watch.  He described intermittent feelings of depression, mood swings, anger dyscontrol and chronic feelings of emptiness in the context of being away from his mother who has a chronic medical illness/his fiancé.  He has had interpersonal problems with his supervisor the past few weeks which contributed to his stress.  Over the past few weeks he had a significant worsening in the context of pending legal charges from MJ use.  He experienced acute SI’s and a plan of jumping down a ladder.  He states that his main stressor is not being allowed to return home.  He denies any current SI’s and desires to be discharged from the USN.  He also has acute thoughts of hurting his superior this past week with plan or homicidal intent.  Diagnosis:  PD NOS with anti social borderline traits.  

19990830:  	Psychiatry Discharge Note:  Patient (Applicant) is fit for full duty.  Patient is recommended to be expeditiously administratively separated based on long standing personality disorder.  He is not current/imminent risk to harm himself or others but has high potential of these behaviors if retained in the USN. 

19990930:	USS LASALLE Medical.  Patient evaluated, found fit for duty, not suitable for duty.  Patient is placed on 24 hour watch until no longer SI/HI.

19991109:	USS LASALLE Medical.  Patient requesting medication for depression.  Assessment: Adjustment Disorder with depressed mood .  ` 

Elements of Discharge  [REQUESTED BY MEMBER]

Discharge Process:					Voluntary:  Requested by Member
Date Member Requested Separation:			NOT FOUND IN RECORD     
Member Requested Separation Due To:			NOT FOUND IN RECORD
Characterization Requested:				NOT FOUND IN RECORD
member Recognized Least Favorable:			NOT FOUND IN RECORD
Recommendation of Commanding Officer (date):		NOT FOUND IN RECORD         
Discharge directed by (date):				NOT FOUND IN RECORD
Narrative reason directed:					IN LIEU OF TRIAL BY COURT MARTIAL
Characterization directed:					
Date Applicant Discharged:				20001128

Additional Information Considered by Board

Type of documentation submitted by the Applicant and considered by the Board
       
       	Document Type					#Pages
       Related to Period of Service Under Review:
	Service/Medical Record:				1
	Other Period of Service:				0
       Related to Post-Service Period:
	Community Service:				0
	Education:					0
	Employment:					0
	Health/Medical:					8
	Character Statements:				0
	Criminal Records Checks:				0
	Additional Statements from Applicant:		2
        Other Documentation	 (Describe Below)		5

        Total Number of Pages:				16

       Description of Other Documentation:
       Applicant's letter to Senator B_, dated June 19, 2006 (2 pages)
       Applicant’s letter to Mr. B_, undated
       Letter from United States Senate, dated July 6, 2006
       Authorization form for United States Senate from applicant, dated June 19, 2006

Applicant’s Issues as Summarized by the Board:
1.  The Applicant contends that he went UA because of the stress associated with his mother’s health.
2.  The Applicant contends that if his CO had followed the recommendation of the Medical Officer he (the Applicant) would have been discharged with a General or Uncharacterized discharge.

Decisional Issues:

 Issue 1 ().   While the Applicant may feel that the stress associated with his concern for his mother’s health 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.

Issue 2 ().  In the absence of a complete discharge package, the Board presumed regularity of governmental affairs.  As such, the Board presumed that the Applicant requested discharge to escape trial by court-martial; that the Applicant had the elements of the offense(s) for which he was charged fully explained by counsel; that the Applicant admitted guilt to the offense(s); and that the Applicant had a complete understanding of the negative consequences of his actions.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The following is provided for the edification of the Applicant.  The Applicant’s DD-214 reveals that the Applicant was UA for 314 days, which is a violation of UCMJ Article 86.  UA for more than 30 days is considered a serious offense for which a punitive discharge is authorized if adjudged by a special or general court martial.  Additionally, while undergoing medical treatment the Applicant revealed pre-service drug use that was not disclosed during his enlistment processing, and referred to recent in-service drug use and “pending legal action.”  Failure to disclose pre-service drug use is a violation of UCMJ Article 83, fraudulent enlistment, and in-service drug use is a violation of UCMJ Article 112a, both of which are also considered serious offenses that could result in a punitive 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, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.

Minority Opinion

None

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 29, effective 11 July 2000 until 21 August 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 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 86 (Unauthorized absence for more than 30 days), 83 (Fraudulent enlistment), and 112a (wrongful use, possession, etc., of controlled substances).

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.  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