ex-AOAR, USN
ND06-01063

Current Discharge and Applicant’s Request:

Application Received:  				20060808     
Narrative Reason for Separation:			
Character of Service:				
Discharge Authority:				MILPERSMAN 5815-010
Last Duty Assignment/Command at Discharge:	uSS HARRY S. TRUMAN (CVN-75)

Applicant’s Request:
	Narrative Reason change to:		NOT APPLICABLE
	Characterization change to:		
	Review Requested:			
Representation:  					

Decision:

Date of Decision:					20070712
The Discharge shall :			
						
The Board found that clemency was: 		
Vote (characterization/reason)			/ 
Location of Board:				Washington D.C.
Complete Service Record:				
Complete Medical Record:			
Complete Discharge Package:			

Applicant’s Issues as Summarized by the Board:
1.  Propriety – Not offered Psychiatric treatment 
2.  Equity – Personal Problems (marital/financial)
3.  Equity – Wants RE Code change to re-enlist.

Summary of Service:

Prior Service:
Inactive: USNR (DEP)				19970530-19980127 
Active:        		               		NONE
Period of Service Under Review:
Date of Enlistment:  				19980128     
Years Contracted:  				;        
Date of Discharge:				20010406
Length of Service:				03  Yrs  2  Mos  10  Days
Time Lost During This Period:			289
Days Unauthorized Absence:			256     
Days Confinement:				33     

Education Level:  				
Age at this Enlistment:  				
AFQT:  						48
Highest Rate/Rank:				AOAA

Performance Evaluation Averages (number of marks):
Performance:					NOT FOUND INRECORD 
Behavior:					NOT FOUND IN RECORD
OTA:						NOT FOUND IN RECORD 
Extracted from:  
Applicant’s Supporting Documents    Other:       

Awards and Decorations (as listed on the DD Form 214):
9 MM PISTOL AWARD

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

19980905:	Civil Conviction:  [General District Court (Traffic Division) Williamsburg/James City County, Virginia] for Reckless driving
 	Sentence:  $35.00 fine plus $30.00 court cost.

19981012:	Applicant to unauthorized absence at 1800.

19981102:	Applicant from unauthorized absence at 2200 (20 days/surrendered).

19981116:	NJP for violation(s) of UCMJ:
	Article 86: Unauthorized absence from 19981012 until 19981101 (20days).
	Article 87: Missing ship’s movement on 19981017.
	Award:  Forfeiture of $100 for 1 month, restriction and extra duty for 15 days.
	No indication of appeal in the record.

19981116:	Retention Warning:  Advised of deficiency (Commanding Officer’s non-judicial punishment held on 19981116 for violation of the UCMJ, Article 86-Unauthorized absence and Article 87-Missing ship’s movement), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

19990329:	Applicant to unauthorized absence at 0700 on 19990329.

19990427:	Applicant declared a deserter.

19991119:	Applicant from unauthorized absence at 1300 on 19991119 (235days/apprehended by Abingdon Police Department, Abingdon, VA).

20000124:	Special Court-Martial.
	Charge: Violation of the UCMJ, Article 86.
	Specification: Unauthorized absence from unit from 19990329 to 19991119.  Plea: Guilty.  Finding: Guilty
	Sentence: Confinement for 40 days, reduction to E-1, and a Bad Conduct Discharge.
	CA action 20000425:  Sentence approved and except for that part of the sentence extending to a Bad Conduct Discharge will be executed.

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

19980916:	Harry S. Truman Medical.  18 year old active duty brought by the Chaplain’s office.  Patient reports feeling down and disappointed with himself.  Patient went home and while visiting with friends was told his fiancée had been out with another man.  Patient reports talking to her about it but she would not give him any info just cried so he listened to some girlfriend of hers.  Member was upset and spent time with the girlfriend.  He regrets that because he was disappointed and angry at his fiancée so he became intimate with the girlfriend. Patient reports that he may have just wanted to get even.  The problem came later when he found the fiancée had not been out with another man.  Patient now feels guilty for not trusting her and his indiscretion.  Patient is also holding the line financially living from paycheck to paycheck.  Patient reports part of his expenses were the result of a MVA he had earlier in the year. 
	Observation:  Patient looks tired
	Diagnosis: not required at this time
	P:  (1) Pt to write a list of his concerns – reviewed
	     (2) Rest (patient given 2 hours to rest in ward)
    	     (3) FFFD (4)  Continue with Chaplain’s office
	     (5) Contact NFSC for relationship info
	     (6) Discussed in great detail at length condition.
	     (7) F/u in 48 hours (8) Return to Clinic if condition worsens or PRN
                	     (9) Contact and discuss problems w/ fiancée
	    (10) Write letter to mother

19980919:	Harry S. Truman Medical.  Patient here for follow up.  18 year old active duty returns for f/u appt situational stress.  Pt has thought about everything and will be taking some leave to see his fiancée.  Patient is now not sure he is ready to commit.  Patient feels better now that he has been able to get some of his thoughts straight.  Patient is not suicidal or homicidal.  
	O: Patient looks more settled than with his last visit.
	A: Resolving situational stress
	P:  (1) continue current treatment 
	     (2) FFFD 
	     (3) Contact NFSC for appointment on relationships
	     (4) F/u in 7-14 days
	     (5) RTC if condition worsens or PRN

19991119:	Johnston Memorial Hospital, Abingdon, Virginia.  He was admitted initially as a 23-hour short stay, however, that is not warranted so he is being converted to a full admission now.  19 year old, white, married male has been in generally good health.  He does have a history of heart murmur when he went out for track in high school.  On the evening of the admission he went for dinner and noticed his heart fluttering.  After going home he began to develop numbness of his fingers and toes.  In the Emergency Room he was found to be in rapid atrial fibrillation with a heart rate of approximately 150.  Impression – new onset atrial fibrillation.  Will start him on anticoagulation prophylactically.  His prognosis is good.

19991214:	CVN-75 Medical.  19 year old male with 23 mos CAD.  Patient was referred for difficulty coping with stress.  Patient recently returned from deserter status 19991129.  Pending court martial.  Referral to psychiatry.  Provisional diagnosis adjustment disorder.

19991216:	Psychiatric consultation.  First Psych eval for this 19 year old married male.  He presents as above .  He reports depressed mood, poor sleep, and anhedonia in the context of being apprehended and need to return for deserter status.  He denied suicide /homicidal ideation.  He denied symptoms while he was a deserter.  He left because he felt he could not adequately support his wife on the pay he received.  Thus they returned to her home, where he got a job, rented a house, and felt he could provide more adequately for her.  He notes she is the only person who has ever loved him and 4 he would “do anything” for her.  He denied alcohol and drug use.  Patient born to a very disrupted family.  His parents divorced when he was young and he moved frequently thereafter.  His mother would use drugs and leave them (at age 8) for days at a time.  He had to buy his own food, clothes, and essentially took care of himself.  As an adolescent he moved in with his father, a paranoid schizophrenic.  He frequently threatens to kill the patient and refused to allow him to have friends.  He finished the high school despite the above and joined USN soon after.  He wanted to be a SEAL, was disappointed when he did not qualify (due to ASVAB).  He does not like the navy and desires discharge.  Denied history of previous psych care but was seen by his MO for depressed mood 9/98.  He states if forced to stay in USN he will leave again.  He has been married for two years to his 18 year old wife.  They have no children.  She has had two miscarriages.  
	AXIS I:  Adjustment disorder: depressed mood occupational problem
	AXIS II:  Dependant personality traits.
	AXIS III:  Atrial Fibrillation, treated with verapamil.
	AXIS IV:  Occupational and Marital issues.
	AXIS V:  GAF=70.
	P: fit for full duty from a psychiatric standpoint
	FU Navy Family Service Center for counseling – patient to call 444 Navy to arrange this
	Recommend consideration of discharge from Navy service as part of pending disciplinary proceedings.
	
19991227:	Emergency Care Treatment, Medical Center, Portsmouth, VA.  19 year old active duty spent night on suicide watch.  Thoughts of suicide increased over past few days.  Currently on pretrial restriction.  Reports increased stress.  Several new episodes of rage, attached E4 2 days.  Saw patient two weeks ago reports “blackouts” during rage episodes.  Denies prior attempts at suicide.  No plan for suicide currently.  Severe financial instability with spouse and family.  
	A: Depression – no immediate suicide risk, unable to contract for safety
	P:  consult  	

Elements of Discharge:  [BCD]

Record of Trial Complete:				
Date Charges Preferred:				19991205
Date Charges Referred to Special Court-Martial:	19991206
Trial Date:					20000124
Applicant requested BCD:				
Length of BCD Suspension:			
Date Applicant to Pre-trial Confinement		19991119
Date Applicant from Pre-trial Confinement		19991123
Date Applicant to Pre-trial Restriction		19991129
Date Applicant to Confinement:			20000124
Date Applicant from Confinement:			20000221
Date Applicant to Voluntary Appellate Leave:	NOT FOUND IN RECORD     
Date Applicant to Involuntary Appellate Leave:	NOT FOUND IN RECORD     
NC&PB Action and Date:				NOT FOUND IN RECORD
NMCCA Action and Date:				Affirmed findings and sentence on 20000829
Date Appellate Review Complete:			20001201
Date of SSPCMO ordering BCD be executed:	20010406
Date Applicant Discharged:			20010406

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:				7     
	Other Period of Service:				0     
       Related to Post-Service Period:
	Community Service:				0     
	Education:					0     
	Employment:					0     
	Health/Medical:					0     
	Character Statements:				0     
	Criminal Records Checks:				0     
	Additional Statements from Applicant:		0     
        Other Documentation	 (Describe Below)		0     

        Total Number of Pages:				7     

       Description of Other Documentation:
       	     

Applicant’s Issues as Summarized by the Board:
1.  Propriety – Not offered Psychiatric treatment 
2.  Equity – Personal Problems (marital/financial)
3.  Equity – Wants RE Code change to re-enlist
 
Issue 1 (Propriety):  The Applicant argues that his discharge was improper because he requested psychiatric treatment and was not provided with it prior to his misconduct.  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.  An Applicant’s statement alone does not overcome the government’s presumption of regularity.  The Board found no indication in the record that the Applicant was inequitably or improperly denied treatment for psychiatric problems nor has the Applicant produced any evidence to support that contention.  By contrast the record shows evidence of numerous instances of attempts by the Applicant’s chain of command to assist him with his problems.  The Applicant was treated by his ship’s doctor on several occasions for depression related to his family, relationship/marital, and financial problems.  The record also indicates that he was being counseled by the Chaplain, and that he was referred to the Family Service Center for assistance.  However, even if the Applicant could show a lack or delay in treatment or assistance, such actions would neither amount to a justification nor to a defense for the Applicant’s own misconduct.  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.

Issue 2 (Equity):  The Applicant contends his disciplinary problems were the result of stress caused by personal and family problems.  The NDRB recognizes that serving in the U.S. Navy is challenging.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  It must be noted that most members of the Navy serve honorably and therefore earn their honorable discharges.  In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  The NDRB found that the Applicant's service was equitably characterized.  Relief denied.

Issue 3 (Equity):   The Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding Re-enlistment Codes.  

In response to the Applicant’s request for an upgrade of the characterization of his discharge to general, the following is provided.  Relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts.  With respect to a discharge adjudged by a court-martial case, 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.  After a thorough review of the Applicant’s record, documents provided, and issues submitted, the Board determined that clemency was not warranted and that the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed.  Relief denied.

There is a presumption of regularity in the conduct of Government affairs.  This presumption will be applied in any review 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.

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 22, effective 15 Dec 98 to 21 Aug 2002, Article 5815-010 (formerly 3640420), Executing a Dishonorable or Bad Conduct Discharge.

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.

DDENDUM:  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