ex-YNSN, USN
ND07-00026

Current Discharge and Applicant’s Request

Application Received:  20061002 	Characterization Received:  
Narrative Reason:  IN LIEU OF TRIAL BY COURT MARTIAL Authority:  MILPERSMAN 3630650

Applicant’s Request:	Characterization change to:    
			Narrative Reason change to: 
			Issues: 	1. Medical condition not recorded in record (Schizoaffective Disorder)
				2. Medical condition was reason for Unauthorized Absence.		

Decision

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

Date:  20071114   Location:  Washington D.C.  PERSONAL APPEARANCE HEARING 

The Board found that 

Discussion

Issue 1 ():  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 does not consider the circumstances surrounding the Applicant’s stated condition, the implied non diagnosis, nor the post service 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 documentation and statements provided by the Applicant did not refute the presumption of regularity in this case.  The Applicant’s medical evaluation of 20070507 does not invalidate the Applicant’s commission of a serious offense while on active duty.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident during the Applicant’s enlistment.  Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on passage of time, or evidence of a medical diagnosis in civilian life, subsequent to leaving the service.  Relief is not warranted.

Issue 2 ():  The Applicant’s representative argued that  the Applicant’s diagnosed post service, mental illness sufficiently mitigated his misconduct to warrant an upgrade in his characterization of service.  The mere presence of a post service diagnosis for mental illness does not automatically mitigate in service misconduct.  There is no evidence in the service record to suggest that Applicant was not responsible for his misconduct or that he should not be held accountable for his actions.  In the Applicant’s case, the Board could discern no impropriety or inequity in the Applicant’s discharge based merely on the fact that Applicant was not diagnosed until three years following his discharge and the fact that the applicant was unable to produce medical evaluation from the time the applicant claimed he was treated in 1998 until May of 2007.  

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, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19910319 - 19910325  	Active:   
Period of Service Under Review:
Date of Enlistment: 19910326	Years Contracted:  ; Extension:    	Date of Discharge:  19950815
Length of Service:  04  Yrs  04  Mths  21  Dys	Lost Time:  Days UA:  445  Days Confined:  17
Education Level:  	Age at Enlistment:  	AFQT:  46	Highest Rank/Rate:  YN3
Evaluation marks (# of occasions):	Performance:  3.9(3)	Behavior:  4.0(3)	 OTA:  3.93
Awards and Decorations (per DD 214):  NATIONAL DEFENSE SERVICE MEDAL, SOUTHWEST ASIA MEDAL (W/TWO BRONZE STARS), SEA SERVICE DEPLOYMENT RIBBON (2)

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

19910328:	Retention Warning for (Failure to disclose your pre-service civil involvement of two speeding tickets in 1987 and 1988.  Paid fine of $40.00 for each.

19930228:	Applicant to unauthorized absence 1601.

19930301:	Applicant missed movement.

19930331:	Applicant declared a deserter (CVN-72 msg, since 19930228).

19930421:	Applicant from unauthorized absence 2305 (52 days/surrendered).

19930513:	SCM -- Viol UCMJ Art. 86 - UA from unit 19930228 to 19940421, Article 87 - Missed ship’s movement on 19930301.
	Awarded:  Confinement for 20 days, FOP ($667.00) for (1 month).
	CA:  (19930514) Approved and ordered executed with the exception of that portion of the sentence pertaining to FOP of $333.00 is suspended for 6 months.

19930513:	Applicant to confinement.

19930529:	Applicant from confinement.

19930603:	Retention Warning for (Pattern of misconduct as evidenced by your violation of the UCMJ, Article 86: Unauthorized absence from 19930228 to 19930421; Article 87:  Missing ship’s movement on 19930301.
	Failure to adhere guidelines will make you eligible for administrative separation.

19940516:	Applicant to unauthorized absence 0700.

19940524:	Applicant missed movement.

19940603:	Applicant missed movement.

19940616:	Applicant declared a deserter (CVN-72 msg, since 19940516).

19940627:	Applicant missed movement.

19940729:	Applicant missed movement.

19940808:	Applicant missed movement.

19940812:	Applicant missed movement.

19940816:	Applicant missed movement.

19940823:	Applicant missed movement.

19950613:	Applicant from unauthorized absence 1650 (393 days/surrendered).

Discharge Process

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:			Article(s) 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:			19950815

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:	Service and/or Medical Record:  		Other Records:  

Related to Post-Service Period:  
	Employment:  			Finances:  			Education: 		
	Health/Medical Records:  		Substance Abuse:			Criminal Records:  	
	Family/Personal Status: 		Community Service:  		References:  		
	Additional Statements From Applicant:  	From Representative:    
Other Documentation (Describe)  Résumé
				 Talent judge’s remarks (2 pages)
				 Certificate from WSSVtv 57

Personal Appearance Hearings

NDRB Documentary Review Conducted (date):	200504281
NDRB Documentary Review Docket Number:	ND05-00194
NDRB Documentary Review Findings:		No change warranted.

Applicant Testified:  
Applicant Available for Questions:  
Witnesses:        
Observers:        

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 22 July 1994 until 2 October 1996, Article 3630650, PROCEDURES FOR PROCESSING ENLISTED PERSONNEL FOR 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 of more than 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 to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  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