Author: CAP
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Docket No. ND01-01052

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

 ex-SR, USN
Docket No. ND01-01052

Applicant’s Request

The application for discharge review, received 010807, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.  Subsequent to the application, the applicant retained representation from the Disabled American Veterans.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020307.  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: UNDER OTHER THAN HONORABLE CONDITIONS/Separation in lieu of trial by court martial, authority: NAVMILPERSMAN, Article 3630650.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I have applied for disability one I have been in my third car-accident and can no longer function fully as the I used to be on July 17^th 20001. Also my right hand is been operated on August 3, 2001, at 11:00 AM at St. Mary's Hospital on my little finger 5^th the ligament are severed and need to be put back together, the heeling process for that is 4-5 months. Necks/shoulders/spine/nerve damage as well!  Plus my back is messed up.
I have started counseling for depression/anxiety attacks/mental problems as well as emotional. I also have a fungus on my feet, called jungle rot, and awaiting treatment for that. I also lost my son because of my selfish and moronic attitude. I am trying to change but it will be, a slow processes.

2.  After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to note the request of the appellant of an upgrade of his Under Other Than Honorable Conditions discharge, to that of Honorable, allowing for equitable relief. The records reflect the FSM served in the United States Navy from October 17, 1988 to February 7, 1989 with a narrative reason for separation in lieu of trial by court martial.  In the Fem.’s attached statement, he notes that he has been in a motor vehicle accident that has left him unable to function in his usual manner. The available records reflect treatment in service for an adjustment disorder with depressed mood that could have been the initial manifestation of his current bipolar disorder.  This same condition is the probable cause for the inappropriate behavior and poor judgement that the FSM used while on active duty that resulted in his currant discharge.  If the condition had been properly treated in service the current end result may not happened.  In any case we believe the FSM has suffered the ill effects of the current discharge long enough, and ask for equitable relief in the form of an upgrade to a General, Under Honorable conditions so he may seek medical treatment with the Department of Veterans Affairs, which will provide equitable relief
In light of the FSM's request we ask that in the course of the discharge review, if it is determined that the policies and procedures under which that applicant was discharged
differ in material respects from policies and procedures currently applicable on a service wide basis to discharges of the type under consideration that full consideration be given to a change of the current discharge on the basis of equity in accordance with SECNAVINST regulations. We ask for the boards careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the applicant.

Documentation

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

Copy of DD Form 214
Statement from applicant

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	881006 - 881016	COG

Period of Service Under Review:

Date of Enlistment:  881017		Date of Discharge:  890207

Length of Service (years, months, days):

	Active:    00  03  21
	Inactive:  None

Age at Entry:  22			Years Contracted:  4

Education Level:  12			AFQT:  24

Highest Rate:  SR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF		Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  35 

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

UNDER OTHER THAN HONORABLE CONDITIONS/separation in lieu of trial by court martial, authority:  NAVMILPERSMAN, Article 3630650.

Chronological Listing of Significant Service Events:

881202:	Applicant to unauthorized absence 1700, 2Dec88.

890103:	Applicant declared a deserter.

890106:	Applicant from unauthorized absence 1400, 9Jan89 (38 days/surrendered).

890111:	Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 86: Absent from organization from 2Dec88 to 9Jan89 (38 days/surrendered) and Article 134: Break restriction.

890119:	Psychological Evaluation: Adjustment reaction with depressed mood.

890124:	Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.  He consulted with counsel and was fully advised of the implications of his request.  The applicant stated he understood the elements of the offense(s) with which he was charged, and admitted he was guilty of all the charges preferred against him.  Specifically, he admitted to violating UCMJ, Article 86: Absent from organization from 2Dec88 to 9Jan89 and Article 134: Break restriction on 2Dec88.  The applicant stated he was completely satisfied with the counsel he had received. The applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veterans' benefits based upon his current enlistment, and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing. 

890125:	Medical Examination:  Psychiatric evaluation is not necessary for discharge proceeding.

890130:	The commanding officer, exercising GCMCA, approved the request for an administrative separation in lieu of a trial by court-martial, and directed applicant’s discharge.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 890207 under other than honorable conditions in lieu of a trial by court-martial (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

Issue 1.  The Board found the applicant’s post-service medical problems had no relevance in determining the applicant’s characterization of service and this issue does not provide a basis for relief.  The Veterans Administration determines eligibility for post-service benefits, not the NDRB.  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’s charter limits its review to a determination on the propriety and equity of the discharge.  In the applicant’s case the Board could discern no impropriety or inequity and therefore considered the applicant’s discharge was proper and equitable.  Relief denied.

Issue 2.  The Board found that the applicant’s diagnosis on 890119 of an “adjustment reaction with depressed mood” does not mitigate his misconduct.  On 890124, the applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.  He consulted with counsel and was fully advised of the implications of his request.  The applicant stated he understood the elements of the offense(s) with which he was charged, and admitted he was guilty of all the charges preferred against him. On 890125, a competent medical authority determined that a psychiatric evaluation was not necessary to complete requirements for administrative separation. The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  Additionally, 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 the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct.  The applicant did not provide sufficient documentation to warrant an upgrade to his discharge.  He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560A), effective 15 Jun 87 until 24 May 89, Article 3630650, PROCEDURES FOR PROCESSING ENLISTED PERSONNEL FOR SEPARATION IN LIEU OF TRIAL BY COURT‑MARTIAL. 

B.  A punitive bad conduct discharge may be adjudged for violation of the Uniform Code of Military Justice, Article [e.g., 86, unauthorized absence for a period more than 30 days] upon conviction by a Special or General Court-Martial, in accordance with the Manual for Courts-Martial.

C.  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.  

D.  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.

E.  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 “afls10.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 DC  20374-5023

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX:  A7100/A9453/A9217/A9323/A0137/A9237/A9221