ex-AA, USN
ND07-00007

Current Discharge and Applicant’s Request:

Application Received:  				20060926
	Characterization of Service:		
	Reason for Discharge:			
	Discharge Authority:			MILPERSMAN 1910-106
	Duty Assignment/Command at Discharge:	USS ABRAHAM LINCOLN (CVN-72)

Applicant’s Request:	
	Characterization change to:		
	Narrative Reason change to: 		
	Review Requested:			
	Representation:				
	Issues (as summarized by NDRB):		1.  Employment
						2.  Education
						3.  Needed to go home to take care of Mother.

Decision:

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

Date of Decision:					20070816
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:	

Discussion

Issues 1 and 2:   either  which the Board cannot form the basis of relief for the Applicant, or  the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding .  

Decisional Issues:

Issue 3 ():  The Applicant contends that his problems in the Navy can be attributed to his need to be at home caring for his Mother.  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.  In the Applicant’s case his enlistment was marred by a retention warning and an unadjudicated violation of UCMJ Article 86 (unauthorized absence, 56 days).  The Applicant’s DD-214 indicates that he requested to be discharge for the good of the service to escape trial by court-martial.  In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence (from the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge, and evidence submitted by the Applicant) to rebut the presumption.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his claim.  There is no evidence in the record, nor has the Applicant produced any evidence, to lead the Board to a conclusion of impropriety with regard to his discharge processing.  Violations of UCMJ Article 86, unauthorized absence in excess of 30 days, carry a maximum penalty of a bad conduct discharge and 1 year of imprisonment if adjudicated by a court martial.   The NDRB found that the Applicant's discharge was proper and his service was equitably characterized.  

Summary of Service:

Prior Service:
Inactive: 					NONE
Active:  						

Period of Service Under Review:
Date of Enlistment:  				19970505
Years Contracted:  				 (3 year active duty, 5 years IRR)
Date of Discharge:				19980721
Length of Service
	Active:					1  Yrs  1  Mths  20  Dys  (does not exclude lost time)
	Inactive:					0  Yrs  0  Mths  27  Dys  
	Time Lost During This Period:		Days UA:  56Days 	Confinement:  

Education Level:  				
Age at this Enlistment:  				
AFQT:  						31
Highest Rate/Rank:				AA

Performance Evaluation Averages (number of marks):
						Performance: N/A Behavior: N/A OTA: N/A

Awards and Decorations (as listed on the DD Form 214):  NONE

Service Record Entries Related to Characterization of Service or Reason for Discharge

19970602:	Applicant to active duty service for 36 months.

19971024:	Retention Warning:  Advised of deficiency (Failure to disclose pre-service civil involvement and traffic.  Possession of a stolen vehicle, December 1993, per member case was dismissed; no fare-transit convey ticket, October 1997, St Louis, Missouri, member paid a fine of $46.00.  The police record checks showed no charges filed or pending.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

19980413:	Applicant to unauthorized absence 0700.

19980515:	Applicant declared a deserter.

19980608:	Applicant from unauthorized absence 0810 (56 days/surrendered).

Medical Record Entries Related to Characterization of Service or Reason for Discharge

19980316:	Naval Hospital Bremerton, Mental Health Ward, Chief Complaint:  “I was looking for any way to get out...I just said suicide but now I know it was stupid to do.”  On day of admission, according to the patient, while being written up (his 13th chit) for being UA, he made a threat on the chit stating he was going to do “bodily harm” if he did not see the CAPT and go to mast.  The applicant subsequently escorted to the ER.  Upon admission to the psychiatric ward, the applicant admitted to “just being passive aggressive by writing that I would do bodily harm to myself, I’m not suicidal.”  The patient denied any previous suicide attempts.  The patient has had a long history of antisocial behavior beginning at the age of 12.  According to the patient, he was arrested twice prior to the Navy, once for selling drugs and once for stealing a car.  He reported a history of starting fires in his neighborhood and “would go around the neighborhood setting houses on fire.”  While the patient was in boot camp, he again told a CDO that he was going to harm himself if he could not take leave and see his mother.  However, after speaking to a psychologist, he changed his mind and was transferred to the USS Abraham Lincoln.  Since arriving on the boat, the patient has, “been trying to get in trouble to get a mast and get out.”
	Assessment: 
	AXIS I:  Malingering.
	AXIS II: Antisocial personality disorder.
	Plan:  The applicant is deemed not suicidal at this time, is fit for full duty, and does not require further psychiatric hospitalization.
	Applicant is risk to harming himself is considered low.
	In spite of any suicidal threats or behavior, this applicant is not considered a high suicide risk, and is attempting to secure a release from his active service commitment.   Consideration should be given to swift administrative action for misconduct if such threats or behavior continue.  Applicant should be held strictly accountable for any further misconduct.
	The prognosis for significant change in this applicant’s behavior is, as with most personality disorders, poor.
	These recommendations were discussed with the applicant, who agrees to comply.

Elements of Discharge:  [SEPARATION IN LIEU OF TRIAL]

Date Charge(s) Preferred:				NOT FOUND IN RECORD
Charge(s) and Specification(s):			NOT FOUND IN RECORD
Date Applicant Submitted SILT request:		NOT FOUND IN RECORD
	Consulted with or Waived Counsel:		
	Acknowledged Understanding Elements:	
	Acknowledged Guilt to:			NOT FOUND IN RECORD 
		BCD/DD authorized for offense(s)	
	Acknowledged Consequences of OTH:	
	Type of Characterization Requested:	NOT FOUND IN RECORD

Commanding Officer Recommendation (date):	)
Separation Authority (date):			NOT FOUND IN RECORD
	Reason for Discharge directed:		
	Characterization directed:			
Date Applicant Discharged:			19980721

Additional Documents Submitted by Applicant and Considered By Board

Total Number of Pages:				2
       
Related to Period of Service Under Review:
	From Service and/or Medical Record:		Other Records:	

Related to Other Period(s) of Service:
	From Service and/or Medical Record:		Other Records:	
       
Related to Post-Service Period:
	Employment:					Finances:	
	Health/Medical Records:				Substance Abuse:	
	Family/Personal Status:				Education:	
 	Community Service Efforts:			References:	
	Criminal Records:			

Other:
	Additional Statements From Applicant:		From Representative:	
        	Other Documentation (Describe)		      

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 December 1997 until 10 July 2000, Article 1910-106, 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 in excess of 30 days).

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