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

ex-EWSR, USN
Docket No. ND00-00172

Applicant’s Request

The application for discharge review, received 991115, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to medical.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000727.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: BAD CONDUCT/Convicted by special court martial, authority: NAVMILPERSMAN, Article 3640420.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  My Bad conduct discharge was inequitable because it was based on behavior that was directly related to my psychiatric condition.

2.  My Bad conduct discharge was inequitable because the special court martial failed to consider psychiatric treatments and diagnoses made by VA medical center Topeka, KS prior to my discharge.

3.  My Bad conduct discharge was inequitable because if failed to consider my previous honorable service of over eleven years.

4.  My Bad conduct discharge was inequitable because the special court martial relied only on a one-time 'snap-shot' psychiatric evaluation.  My entire psychiatric file, to date, dispells the erronious diagnosis made in conjunction with the court martial.
 
5. I believe that I deserve an Honorable Discharge because the behavior that eventually led to my Court Martial conviction was clearly sympthomatic of the mental disorders that I have been continuously treated for from a period six months prior to my discharge tothe current time.  I have approximately 500 pages of VA psychiatric records as well as well as voluminous records from my current mental health provider to show continuity of treatment from February 1987 to the present.  I am only providing one record from each care provider to ease the review process.  I request that the Review Board contact me or the VA Medical Centers in question should they require additional medical/psychiatric records.

6.  I believe that the Special Courts Martial conviction should be overturned because I was mentally unable to defend myself or provide information to the court which could have resulted in my being discharged for medical reasons rather than for Bad Conduct.

7.  I believe that if I had received the appropriate psychological help during my last enlistment I could probably have completed it in an honorable fashion.  I further believe that the Navy was downsizing around the time that I was discharged - and if I had honorable service I might have been offered an early retirement.  I believe the Navy not providing appropriate mental health service my have kept me from receiving some type of reduced retirement pay.

Documentation

In addition to the service record, the following additional documentation, submitted by the applicant, was considered:

Copy of DD Form 214 (First enlistment)
Copy of DD Form 214 (Second enlistment)
Copy of DD Form 214 (Third and final enlistment)
Mid Columbia Center for Living letter dated September 4, 1999
VA Medical Center Topeka, KS discharge summary dated February 17, 1997
VA Medical Center Ft. Mead, SD clinical record dated December 12, 1989
VA Medical Center Ft. Mead, SD consultation sheet dated January 17, 1990
Mid Columbia Center for Living Mental Health Assessment dated January 15, 1991
Mid Columbia Center for Living Progress noted dated December 9, 1998
Letter of support from CWO2 (retired) M_ B_ dated October 22, 1999

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Active:   USN			710503 - 770422	HON
		   USN			770831 - 830531	HON
	Inactive: USNR (DEP)	710312 - 710502	COG

Period of Service Under Review:

Date of Enlistment:  830601		Date of Discharge:  870904

Length of Service (years, months, days):

	Active:    04  03  04
	Inactive:  None

Age at Entry:  31			Years Contracted:  4

Education Level:  12			AFQT:  60

Highest Rate:  EW2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.00 (1)	Behavior:  2.00 (1)		OTA:  3.00

Military Decorations:  None

Unit/Campaign/Service Awards:  NUC, BER, VSM, NDSM, NEM, SSDR, HSM

Days of Unauthorized Absence:  495

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

BAD CONDUCT/Convicted by special court  martial, authority: NAVMILPERSMAN, Article 3640420.

Chronological Listing of Significant Service Events:

840606:	Report of Declaration of Deserter.  Applicant declared a deserter on 840606 having been an unauthorized absentee since 2230, 840506 from USS MCCLOY (FF-1038).

850115:	Applicant in jail in Ogden, Utah.

850304:	Report of Declaration of Deserter.  Applicant declared a deserter on 850304 having been an unauthorized absentee since 0730, 850131.

850805:	Applicant to confinement Navy Brig, NavSta, Norfolk, VA.

851007:	Applicant released from confinement.

851008:	Special Court Martial
	Charge I: violation of the UCMJ, Article 86,  (4 specifications).
	Specification 1: Unauthorized absence from 0730, 4Nov83 to 1521, 28Dec83 (54 days/surrendered).
	Specification 2: Unauthorized absence from 0730, 31Jan84 to 1310, 10Feb84 (10 days/surrendered).  
	Specification 3: Unauthorized absence from 2230, 6May84 to 1301, 15Jan85 (254 days/apprehended).
	Specification 4: Unauthorized absence from 31Jan85 to 27Jul85 (177 days).
	Findings:  to Charge I and specifications thereunder, guilty.
	Sentence: CHL for 90 days, forfeiture of $200 per month for 3 months, reduction to EWSR, Bad Conduct discharge.
	CA 851220: Sentence approved and ordered executed, except for bad conduct discharge.
	
851008:	Joined Navy Brig NAVSTA Norfolk, VA, for confinement.

851015:	From confinement and returned to full duty.

860130:	NMCCMR: The findings of guilty and sentence, as approved on review, are affirmed.

861016:	NC&PB clemency not granted; restoration denied.

870818:	SSPCMO:  Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.		

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 870904 with bad conduct due to convicted by special court martial (A).  The Board presumed regularity in the conduct of governmental affairs (B).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

The applicant wrote seven non decisional issues regarding the propriety and equity of his Bad Conduct Discharge.  Relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts.  With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency.  The applicant's case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  The NDRB found the applicant’s service record devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded.  The applicant provided no post service documentation for the Board to consider.  Relief is not warranted.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560A), effective 15 Jun 87 until 13 Dec 89, Article 3640420, DISCHARGE OF ENLISTED PERSONNEL ADJUDGED BY SENTENCE OF COURT‑MARTIAL.

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT

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 Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive 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 Directive 1332.28 and other Decisional Documents by going online at "afls14.jag.af.mil". 

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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard D.C.  20374-5023