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Docket No. ND02-01014

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

 ex-OSSA, USN
Docket No. ND02-01014

Applicant’s Request

The application for discharge review, received 020711, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions.  The Applicant requested a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030331.  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/IN LIEU OF TRIAL BY COURT MARTIAL, authority: NAVMILPERSMAN, Article 1910-106 (formerly 3630650).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  To whom it may concern,

     I believe my discharge should be upgraded because of a few reasons.  For one, after discharge I have been continuously employed by TGI Fridays and the State of Nevada.  I have since moved back to my home in Billings, MT where I have found a job working in a restaurant.  My discharge has had no adverse affect on my life except for one thing, I want to go school.  Given the excessive cost of schooling these days, I cannot afford to attend college.    I know I did the wrong thing by leaving the military on bad terms and I take full responsibility for my actions.  I regret going UA and leaving my shipmates.  With an upgrade to my discharge, I would have the opportunity to go to school full time and pursue a career in Wildlife Biology.  If I am given the opportunity to attend college, I will not let it slip away.  I feel I am a valuable part of my community, but without an education you cannot get very far anymore.    By leaving the Navy, I let a lot of people down.  Two of those people are my parents.  They would like more than anything to see me attend college.  I am a good person with a lot of dreams.  I made the mistake of leaving when I did, and by doing so, a lot of those dreams slipped away.  Now, I can make one of those come alive again by going to school.  If my discharge is not upgraded I will save my money until I can go back to school.  I served my country for 3 years.  I admit I wasn't the model sailor, but I did my job every day.   I left the Navy because I was in love.  My girlfriend had to move back home to Nevada, and I didn't want to be without her.  I know it sounds like a bad reason, but I love her.  I left with the intention that I wasn't going back.  I turned myself in about 9 months later.  I admitted that I was in the wrong and I took my punishment.  I have taken the discharge I was given and I haven't let it affect me.  All I am asking for is an upgrade so that I can pursue some of my goals.  I ask you to please consider this.  Thank you for your time.  M_ H_ (Applicant)

Documentation

Only the service and medical records were considered, as the Applicant did not provide additional documentation for the Board to consider.

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	980522 - 980909	COG

Period of Service Under Review:

Date of Enlistment:  980910		Date of Discharge:  011102

Length of Service (years, months, days):

	Active:    02  05  01 (Excludes lost time.)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 (24 months extension)

Education Level:  12			AFQT:  84

Highest Rate:  OSSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0 (1)	Behavior:  3.0 (1)		OTA:  3.50

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, AFEM

Days of Unauthorized Absence:  262 

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

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority:  NAVMILPERSMAN, Article 1910-106 (formerly 3630650).

Chronological Listing of Significant Service Events:

001024:	NJP for violation of UCMJ, Article 86:  Unauthorized absence.
	Award:  Forfeiture of $563 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

001030:	Naval Hospital, Bremerton Mental Health Clinic:  This 21 year old Caucasian, male, active duty member with 2 years and 2 months of active service and stationed aboard USS DAVID R. RAY, was referred by Doctor K_ for evaluation of depression and suicidal ideation.  Unkempt, uniform of the day, speech of normal rat and rhythm, altered speech.  His speech is so soft it is barely audible and he does not raise his voice when directed to.  Depressed mood, sullen mood, constricted affect, flat affect, thought process logical, coherent and goal directed, thought content clear of abnormalities, short and long term memory intact, oriented to time, oriented to place, oriented to person, judgment inadequate, insight impaired.  The pt reported some suicidal ideation a vague plan and vague intent.  Pt reported no homicidal ideation with no plan and no intent and no victim.  No barriers to learning were noted.  Pt has reacted adversely to change of command some months ago and the increased demands that have been placed on him.  He feels he can no longer take the stress and that his superiors do not care about him.  He went UA recently and went to Mast for that.  Now he reported suicidal thoughts of throwing himself overboard because "I can't be here anymore."  He has a recent history of failure in college when he had to drop out due to poor grades because he did not go to class.  He reported his parents are disappointed in him.  His increasing pattern of failures was pointed out to him in an effort to motivate him to make a better effort and to try to succeed, but he instead that he just needs to get out of the Navy.
	Diagnosis:  AXIS I:    Occupational Problem
		AXIS II:   Avoidant personality disorder with schizoid features
		AXIS III:  none noted
		AXIS IV:  None
		AXIS V:   Current 55,  Past year 60
	Recommendation:  Expeditious Administrative Separation.  This service member is not mentally ill, but manifests a long-standing disorder of character and behavior that significantly impairs his ability to function in the military.  While not acutely suicidal he is considered at risk of harm to himself.  He has no motivation for treatment or for further military service and if retained will become an increasing medical and administrative burden.

001101:	USS DAVID R RAY Medical Report:  Single 21 year old active duty E-3 male recommended for expeditious administrative separation by neuropsychologist.  Have reviewed DR D_'s note and have nothing to add.  The command desires to retain the sailor.  I have met & spoken with this pleasant young sailor, and encouraged him to do his best to meet his obligations.  IDC D_ also joined me in this "pep talk." 
Assessment:  Occupational problems/personality disorder recommended for expeditious admin separation.  Command elects retention at this time.  
Plan:  Am available at all times to help counsel this pt.  Follow-up as necessary.

001115:	CO, USS DAVID R RAY (DD971) advises Commander, Destroyer Squadron Nine, after further consultation with CDR D.S. D_, MSC, USNR, it was decided that OSSA H_ (Applicant) does not require immediate administrative separation.  CDR D_ has no objection to retaining member (Applicant).  OSSA H_ (Applicant)'s personality disorder seems to have manifested after he learned that he would not be administratively separated after returning from a 15 day UA.  OSSA H_ was referred to the mental health evaluation by the chaplain's office.  The chain of command will closely monitor his mental state and in addition, he (Applicant) has been encouraged to attend the Family Service Center's Stress Management class and continue meeting with the chaplain.

001227:	Unauthorized absence from USS DAVID R RAY (DD971) since 0700, 27DEC00.  Intentions unknown.

010126:	Declared deserter.

010918:	Surrendered at 0930 at Base Security, NavSta Everett, WA.  Returned to military control as of 0930, 01SEPO18.

011004:	Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 86:  Unauthorized absence (UA) from 27DEC00 - 18SEP01).

011031:	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, unauthorized absence for more than 30 days.  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.  

011031:	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 with an Under Other Than Honorable Conditions.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 011102 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:  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.  The Board found the Applicant’s age, education level, and test scores qualified him for enlistment.  While he may feel his love for his girlfriend contributed to his actions, the Applicant’s service record is marred by award of non-judicial punishment (NJP) and an unauthorized absence of over 30 days thus substantiating the misconduct for which he was separated. The Applicant’s summary of service clearly reflects the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service.  An upgrade to honorable conditions would be inappropriate.  Relief denied

The Board has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities as requested in the issue.  The Board’s regulations limit 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 proper and equitable.   Relief denied.  

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, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.   At this time, the Applicant has not provided any verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.  Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 29, effective 
11 Jul 2000 until 21 Aug 2002, Article 1910-106 (formerly 3630650), 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 “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 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/A9301/A9217/A9223/A9231/A9221