ex-EO3, USN
ND07-00418

Current Discharge and Applicant’s Request

Application Received:  20070215 				       Characterization Received:  
Narrative Reason:  IN LIEU OF TRIAL BY COURT MARTIAL 		          Authority:  MILPERSMAN 1910-106

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1. Unfair to have to repay enlistment bonus
			2. Misconduct due to mental duress
			3. Discharge not warranted by overall performance
			4.  Post-service conduct.

Decision

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

Date:  20071018  		               	    Location:  Washington D.C.

Discussion

Issue(s) 1:   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 .  

Issue 2 ().  The Board noted that the Applicant’s medical record did reflect evaluation for depression; however, that same record indicated that the Applicant was amenable to outpatient treatment and fit for full duty.  The Applicant does not indicate why she believed it was necessary to enter a period of unauthorized absence, or how her depression justified or mitigated her misconduct.  The Board concluded that the evidence of record does not demonstrate that the Applicant was not responsible for her conduct or that he should not be held accountable for her actions. 

Issue 3 ().  The record indicates that the Applicant entered a period of unauthorized absence on 20030717, was declared a deserter a month later, and then confined upon her return.  The record does not indicate whether the Applicant freely returned to military control or was apprehended.  Nor does the record contain a copy of the charges presumably preferred against her or her request for separation in lieu of trial by court-martial.  However, the evidence in the record is consistent with the conclusion that the Applicant did commit the offense of unauthorized absence or desertion, and the Applicant does not deny or dispute committing such an offense.  Such an offense is a significant departure from the conduct expected of members of the naval service.  An under honorable conditions discharge is normally the appropriate characterization when a servicemember requests administrative separation to avoid trial by court-martial.  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 she was charged fully explained by counsel, or that she waived counsel; that the Applicant admitted guilt to the offense(s); that the Applicant acknowledged a complete understanding of the negative consequences of her actions; and that the Separation Authority took action in accordance with applicable regulations and naval standards.  

Issue 4 ().  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety or inequity after a review of Applicant’s case.  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 could be provided to the Board to corroborate claims of good post service accomplishment 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.  As of this time, the Applicant has not provided any/sufficient post-service documentation to consider mitigating the misconduct that resulted in the characterization of 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, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that 

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

	  “UNDER OTHER THAN HONORABLE CONDITIONS”
	
The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate. 

Summary of Service

Prior Service:
Inactive: USNR (DEP)	20011128 - 20020226  		Active:   
Period of Service Under Review:
Date of Enlistment: 20020227	Years Contracted:  ; Extension:  	Date of Discharge:  20031028
Length of Service:  01  Yrs  08  Mths  02  Dys		Lost Time:  Days UA Confined:  UNABLE TO DETERMINE
Education Level:  		Age at Enlistment:  		AFQT:  86		Highest Rank/Rate:  EO3
Evaluation marks (# of occasions):	Performance:  3.3(3)	Behavior:  2.7(3)	 	OTA:  2.78 
Awards and Decorations (per DD 214):  NATIONAL DEFENSE SERVICE MEDAL, M16 RIFLE (SHARPSHOOTER), SEA SERVICE DEPLOYMENT RIBBON

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

20030206:	Medical Record:  Reason for visit:  Complaining of depression, social withdrawal.
	Diagnosis:  Seasonal affective disorder vs dysthmia.
	Recommendation:  Refer to psychiatry for counseling and recommendation on prescription.  

20030410:	Medical Record:  Reason for visit:  Psychiatry intake.
	Diagnosis:  Axis I, MDD.  Axis II, Deferred
	Recommendation:  Fit for full duty.  Continued outpatient evaluation and treatment.  Follow up 2 weeks.

20030717:	Applicant to unauthorized absence.

20030818:	Applicant declared a deserter.

20031003:	Applicant received at Naval Brig, Miramar for confinement.

20031003:	Medical Record:  Reason for visit:  Record review for confinement.
	Diagnosis:  No requirement for assessment.  Records reflect history of depression, but no suicidal ideation.
	Recommendation:  NA.

20031021:	Medical Record:  Reason for visit:  Administrative separation physical for desertion.
	Diagnosis:  Qualified for separation.
	Recommendation:  NA

Discharge Process

Charge(s) and Specification(s):			NOT FOUND IN RECORD
Date Applicant Submitted SILT request:		NOT FOUND IN RECORD
Commanding Officer Recommendation (date):	
Separation Authority (date):			NOT FOUND IN RECORD
Date Applicant Discharged:			20031028

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)  Letter from Board for Correction of Naval Records

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 25 January 2004, 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.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications.

D.  The Manual for Courts-Martial authorizes the award of a punitive discharge as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Articles 85, Desertion; and 86, Unauthorized absence (greater 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.  The Board has no authority to waive recoupment of enlistment bonuses.

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