ex-QM3, USN
 ND07-00890

Current Discharge and Applicant’s Request

Application Received:  20070621 	Characterization Received:  
Narrative Reason:  IN LIEU OF TRIAL BY COURT MARTIAL 	Authority:  MILPERSMAN 1910-106

Applicant’s Request:	Characterization change to:  
			Narrative Reason change: 

Applicant’s Issues:	1.  G.I. Bill and eligibility for government jobs.
			2.  Prescribed medications for depression which caused irrational decisions
			3.  Post service conduct – 2 character reference letters and police records check

Decision

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

Date:  20080103		Location:  Washington D.C	 Representation:  

Discussion

:    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 Applicant contends that he was prescribed medications which cause him to make irrational decisions.  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.  Specifically with regard to the Applicant’s medical treatment there is no evidence in the record, nor has the Applicant produced any evidence, to support his contention of prescription side effects.  The record however, does document the Applicant’s medical treatment and service throughout the enlistment in questions.  Contrary to the Applicant’s claim this documentations shows a history of extended UA’s and a voluntary statement of continuous illegal drug use resulting in nonjudicial punishment and civil arrests.  The Applicant requested discharge for the good of the service to escape trial by court-martial.  In the request the Applicant noted that his rights were thoroughly explained to him and that he received counsel.  Furthermore, the Applicant admitted guilt to the chargers preferred against him, violation of UCMJ Article 86 (unauthorized absence) and violation of UCMJ Article 112a (wrongful use of a controlled substance).  He further certified a complete understanding of the negative consequences of his actions and that characterization of service could be under other than honorable conditions.  Violations of UCMJ Article 86, unauthorized absence in excess of 30 days, and 112a carry a maximum penalty of a Bad Conduct Discharge and up to five years of imprisonment if adjudicated by a court martial.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service. 

Issue 3 ():  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered.  The Applicant submitted two character reference letters and a police records check in support of his argument for an upgrade based on post-service conduct.  The Applicant's efforts need to be more encompassing than those provided.  For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and certification of a drug free lifestyle.  The Board determined that the Applicant’s post service did not mitigate the misconduct which resulted in the Applicant’s discharge and characterization of his service.  

In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence (to include evidence submitted by the Applicant) to rebut the presumption.  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 

Summary of Service

Prior Service:
Inactive: USNR (DEP) 20010629 - 20010709  		Active:   19840306 - 19880304  
Period of Service Under Review:
Date of Enlistment: 20010710	Years Contracted:  4; Extension:  10 months	Date of Discharge:  20050311
Length of Service: 03 Yrs 08 Mths 02 Dys				Lost Time:  Days UA:  268
Education Level:  12	Age at Enlistment:  38	AFQT: 44	Highest Rank/Rate:  SM3
Evaluation marks (# of occasions):	Performance:  3.0 (4)	Behavior:  2.5 (4)	 	OTA:  2.76 (4) 
Awards and Decorations (per DD 214):  NDSM, SSDR, NGCM

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

20030526:	Applicant to unauthorized absence at 0630.

20030528:	Applicant missed movement of USS Denver (LPD 9).

20030615:	Evaluation for period of 20020616 to 20030615:  Individual trait average 2.33.  Block 43 (comments):  “Military bearing below standards...unauthorized absence resulted in missed movement...substandard teamwork...complete lack of professionalism...periodically demonstrates poor self control and decision making abilities resulting in disciplinary action.”  Ranked as Progressing, 29 of 29.

20030620:	Applicant from unauthorized absence at 1600 following apprehension by civil authorities (24 days). 

20030625:	NJP - Viol UCMJ Article 86 (unauthorized absence) and 87 (missing movement).
	Awarded - FOP ($904/month for 2 months); Restr (45 days); Extra duties (45 days).

20040114:	Commander, Naval Personnel Command informs Commanding Officer, USS DENVER (LPD 9) of the Applicant’s denied/revoked security clearance based on failure to disclose adverse financial information.  This letter also directed the CO to process for fraudulent enlistment.

20040502:	Applicant to unauthorized absence from NTTC Meridian MS at 2200.

20040614:	Applicant from unauthorized absence; surrendered TPU San Diego at 1430 (42 days).

20040616:	Applicant to unauthorized absence at 0730.

20050104:	Applicant from unauthorized absence at 1930 following apprehension by San Diego Police Dept (202 days).

20050225:	Substance Abuse Rehabilitation Program:  Applicant tested positive for Cocaine on post UA urinalysis.  Applicant stated he used Meth in Jan 2005.  Reported history of Marijuana and Cocaine use beginning at age 16.
	Diagnosis:  Polysubstance dependence with depressive disorder 
	Recommendation:  Level II treatment

Discharge Process

Charge(s) Preferred: 				Not found in record
Charge(s) and Specification(s):			Not found in record
	
Date Applicant Submitted SILT request:		20050119
	Consulted with or Waived Counsel:		Consulted
	Acknowledged Understanding Elements:	
	Acknowledged Guilt to:			Articles 86 and 112a 
		BCD/DD authorized for offense(s)	
	Acknowledged Consequences of OTH:	
	Type of Characterization Requested:	

Commanding Officer Recommendation (date):	Not found in record
Separation Authority (date):			Navy Region Southwest (20050207)
	Reason for Discharge directed:		
	Characterization directed:			
Date Applicant Discharged:			20050311

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) 

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 2002 until 30 May 2005, 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 IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications.

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 violations of UCMJ, Articles 86 and 112a.

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