ex-FC3, USN

Current Discharge and Applicant’s Request

Application Received:  20090107
Characterization of Service Received:  
Narrative Reason for Discharge: 
Authority for Discharge:  MILPERSMAN 

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

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19990312 - 19990419  	Active:	

Period of Service Under Review:
Date of Enlistment:  19990420	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20010709	Highest Rank/Rate:  FC3
Length of Service:   Year(s)     Month(s)   19 Day(s)
Education Level:  	AFQT:  72
Evaluation Marks:	Performance:  4.0 (1)	Behavior:  3.5 (2)	OTA:  3.25

Awards and Decorations (per DD 214):	

Periods of CONF:  

NJP:  
- 19991216:	Article 86 (UA)
	Article 92 (Failure to obey a lawful order) 
	Awarded:      Suspended:     

SCM:  	

SPCM:  

CC:  	

Retention Warning Counseling:  

- 19991216:	For disobeying a general regulation by possessing an alcoholic beverage while under the age of 21.

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”
	  “IN LIEU OF TRIAL BY COURT MARTIAL”

The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate.

Types of Documents Submitted/reviewed

Related to Military Service:	
                                         DD 214:  	 Service/Medical Record:  		  Other Records:  

Related to Post-Service Period:	
	Employment:			Finances:			Education/Training:	
	Health/Medical Records:		Substance Abuse:			Criminal Records:	
	Family/Personal Status:		Community Service:		References:		
              Additional Statements:
                             From Applicant:  	From Representation:         	From Congress member:    

                    Other Documentation:  

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 29, effective 11 July 2000 until 
21 August 2002, 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 IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications.

C.  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.

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1. Applicant claims offenses did not justify court-martial charges.
2. Applicant claims reason and characterization for administrative discharge are not justified.
3. Applicants alleges that Navy officials knew or should have known of his mental health problems and failed to properly evaluate and treat him.
4. Applicant believes that he should have been evaluated by a medical evaluation board (MEB) and a Physical Evaluation Board (PEB).
5. Applicant believes he was prejudiced by ineffective assistance of his assigned counsel.

Decision

Date:  20090625		Location:  Washington D.C.	Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  .

Discussion

:  (Decisional) ()  . The Applicant—through civilian counsel—is seeking an upgrade in the characterization of the his discharge and has presented five issues for the Board’s consideration.  The Applicant’s counsel first argues the alleged offenses committed by the Applicant did not justify court-martial charges against the Applicant and that he should have only received NJP.  The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted.  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.  

The Applicant’s record of service included one NJP for violation of the Uniform Code of Military Justice (UCMJ): Article 86 (UA, 19 days), and Article 92 (Failure to obey a lawful order).  Furthermore, per the Applicant’s Exhibit 10, on 08 May 2001, the following charges were preferred against the Applicant to a SPCM:  Article 86 (UA - 3 specifications), Article 87 (Missing ship’s movement – 2 specifications), Article 92 (Disobeying a lawful order), Article 112a (Wrongful use of marijuana), and Article 134 (Incapacitation for duty due to overindulgence intoxicating liquors or drugs).  The Applicant requested a SCM after consulting with his assigned defense counsel (see Applicant’s Exhibit 12).  This request was denied and the Applicant submitted a request for administrative discharge in lieu of trial by court-martial on 06 June 2001 (see Applicant’s Exhibit 13).  In the request for discharge, the Applicant indicated in writing that his counsel had fully explained the elements of the offenses for which he was charged, that he was guilty of the offenses, and a summary of the evidence pertaining to the offenses to which he acknowledged guilt was provided to him.  He further certified a complete understanding of the negative consequences of his actions and that his characterization of service would be Under Other Than Honorable Conditions (OTH).  

Pursuant to the Manual for Courts-Martial, Part V, it is within the discretion of the commanding officer (CO) to refer charges for trial by court-martial.  Based on the nature and seriousness of the offenses charged, the Board determined there was sufficient evidence to justify disposing of the case at a court-martial.  Accordingly, the Board concluded the CO acted within the authority granted by law in preferring the Applicant’s case to a SPCM.  The Applicant was willing to accept a SCM and did request the same after the charges were preferred against him.  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.  Therefore, relief is denied regarding this issue.

:  ((Decisional) )  . Secondly, the Applicant’s counsel argues the reasons given for the administrative separation do not justify either discharging the Applicant or giving him the worse possible type of administrative discharge, and the charges should have been dismissed based on the Applicant’s illegal confinement.  The evidence of record reflects the Applicant admitted to committing the offenses as discussed supra and voluntarily requested administrative separation to avoid a SPCM.  The offenses to which the Applicant pled guilty were serious in nature and the majority of which could have resulted in a punitive discharge if he was convicted at a SPCM.  However, at the request of the Applicant, the charges were withdrawn and he was administratively discharged.  Therefore, the Board has concluded the separation in lieu of court martial (SILT) with an OTH was justified, proper and in accordance with the Applicant’s request.  

The Board has also determined the counsel’s request pertaining to illegal pretrial confinement does not warrant relief since the Applicant requested to be administratively processed with an OTH instead of having his case heard at a SPCM, thereby waving his right to a trial and judicial review regarding the issue of illegal pretrial confinement.  Furthermore, the Board does not have the authority to grant the Applicant relief for the alleged illegal confinement.  Therefore, relief is denied as pertaining to this issue.

:  (Decisional) ()  .  The Applicant’s counsel also argues that U.S. Navy officials knew or should have known that the Applicant was having severe mental health problems but failed to take the steps needed to have him properly evaluated and treated while he was still on active duty.  He also contends that the Applicant should have been referred to a Medical Evaluation Board (MEB), Physical Evaluation Board (PEB), and medically retired or separated with a disability rating of at least thirty percent.  

The Applicant’s medical record as provided by his counsel reflects the following:  1) On 30 April 2001, while in a UA status since 16 April 2001, the Applicant went to the Department of the Air Force Mental Health Clinic, Offutt Air Base, Nebraska seeking help for depression and was transferred to a local civilian inpatient mental health unit for his safety (see Applicant’s exhibit 8);  2) on 30 April 2001, the Applicant was admitted to the Richard Young Center, Psychiatric unit for suicidal attempts and depression, diagnosed with depression and alcohol dependence and started on Paxil (see Applicant’s exhibit 2); 3) during his hospitalization, a history and physical was performed, which indicated the Applicant was oriented, cooperative, very appropriately dressed and appeared to be an accurate historian; 4) the discharge summary reflects at the time of discharge from the Richard Young Center, the Applicant was not experiencing illusions, delusions, hallucinations, or suicidal ideation, was oriented to all spheres and given instruction to report to Ehrling Bergquist Mental Health Clinic; 5) the Emergency Department Triage Note of 05 May 2001, indicates the Applicant was referred to “Psych” after being returned from the brig due to continued suicidal ideations, placed on suicide watch and continued on [current] treatment plan (see Applicant’s  exhibit 7); 6 ) it was determined during this assessment that the Applicant’s insight and judgment were intact; and 7), the Navy Brig Naval Station Admission Summary of 07 May 2001, indicates the Applicant was evaluated by a psychologist and determined to be alert and oriented with logical and goal directed thoughts (see Applicant’s Exhibit 9).  

It is generally the responsibility of the primary medical provider to examine the service member and make a determination as to whether a MEB is needed based on the severity and permanency of the service member’s condition and then refer the case to a PEB, if warranted.  The medical records presented by the Applicant’s counsel, indicates the Applicant was seen on several occasions for suicidal ideation and depression while on active duty and that U.S Navy official were aware of the Applicant’s mental health issues.  Moreover, the medical evidence as discussed supra indicates the Applicant was returned to Navy Brig personnel after his unauthorized absence period ended, and was evaluated by a brig psychologist, who assessed the Applicant, made recommendations and developed a plan of action which included follow-up as needed.  There is no evidence in the record or provided by the Applicant’s counsel to prove the Navy failed to properly evaluate or treat the Applicant.  Neither does the evidence of record indicate the Applicant’s mental condition was of such severity or longevity to warrant a MEB and referral to PEB.  The presumption of regularity of government affairs was applied in the absence of a complete medical record.  Neither the Applicant nor his counsel has provided substantial credible evidence to rebut this presumption.  

Furthermore, the Board has concluded there is no evidence in the record or provided by Applicant’s counsel to support the argument that the Applicant was confused, experiencing severe mental health problems and thus entitled to a medical board.  The medical records did not indicate the Applicant was mentally incompetent or unable to appreciate the wrongfulness of his conduct.  To the contrary, the medical entries discussed supra describe the Applicant as being alert, oriented to all spheres, not delusional or experiencing illusions.  Furthermore, medical documentation from the Richard Young Hospital indicates the Applicant’s judgment was intact at the time of discharge.  Accordingly, relief is denied as pertaining to these issues.  

:  (Decisional) ()  . Lastly, the Applicant’s counsel argues the Applicant was prejudiced by the ineffective assistance of his assigned defense counsel, who had a duty to ensure that each charge was proper and supported by admissible evidence.  Per Applicant’s Exhibit 10, on 09 May 2001, the Applicant was informed of the charges against him.  Per Applicant’s Exhibit 11, the Applicant was assigned defense counsel on 17 May 2001 and with the assistance of counsel he requested a SCM on 21 May 2001 and indicated in the request that he was satisfied with his defense counsel in all respects and believed his advice was in his best interest.  After this request for SCM was denied, the Applicant consulted with his defense counsel again and requested administrative separation in lieu of the court-marital (SILT).  There is no evidence in the record indicating that the Applicant expressed dissatisfaction with his defense counsel nor did he contest the evidence or validity of the charges at the time he requested the SCM or the SILT.  

The Board also determined the Applicant’s counsel failed to prove that the former defense counsel breached his duty to ensure the charges were proper and supported by the evidence.  The correctness of the charges referred to a court-martial are required to reflect an official determination that the facts stated in the charge sheet are true, and the presumption of regularity is applied in the absence of substantial evidence to rebut the same.  As discussed supra, the Applicant pleaded guilty to these charges after reviewing the evidence and consulting with counsel.  The record reflects the Applicant fully understood the elements of the charges and received a copy of the evidence pertaining to the offenses and did not object to it.  Therefore, relief is denied regarding this issue. 

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and discharge process, the Board found   Therefore, the awarded characterization of service shall   and the narrative reason for separation shall remain .

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of  discharge.  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe 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:  After a document review has been conducted, 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.  There are veteran's organizations, such as the American Legion and the Association of Service Disable Veterans, willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  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 U.S Department of Veterans Affairs (VA) 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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the NDRB’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 NDRB 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 or is referred to a court martial 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 or for any basis wherein an Other Than Honorable Discharge is authorized, 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 other medical related reasons.  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.  

Post-Service Conduct:  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  Outstanding post-service conduct, 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, is considered during Board reviews.  Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificate (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance or completion of higher education (official transcripts); and documentation of a drug-free lifestyle.   The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.

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 special 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.  The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership:  The names and votes of the members of the NDRB 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