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Docket No. ND03-00490

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

 ex-SN, USN
Docket No. ND03-00490

Applicant’s Request

The application for discharge review was received on 20030130.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions and the reason for the discharge be changed to Medical.  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation by the Disabled American Veterans.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040128.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service and reason for the discharge was discovered by the NDRB.  The Board’s vote was unanimous that the character and reason for the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority: NAVMILPERSMAN, Article 3630650.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I am writing this narrative as the guardian of E_ B_ W (ex-service member). I am E_ A_ W_ (Applicant), father.  I am asking that you consider this petition to have his other than honorable discharge from the Navy changed to a general/under honorable conditions discharge: I am making this request because at the time he was inducted into Naval service he was, and continues to this day to be, suffering from parnoid schizophrenia. The chronology of his military service is as follows:
June 1990 entered the Army National Guard while in school at Southern Illinois University.  March 1996 enlisted in the Navy and began basic training at Great Lakes Naval Station.  August 1996 went UA from the Great Lakes Naval Station
December 1996 turned himself in to the Naval authority in Bangor Washington
June 1998 received an honorable discharge from the Army.  Following E_’s (ex-service member’s) separation from The Navy he lived homeless in Seattle and Boston.  In January 1997 he returned home and was admitted to St Mary’s Hospital psychiatric ward for his first hospitalization.  Since then E_ (Applicant) has been hospitalized l0 times. During the past year he has attempted suicide twice and received ECT (shock treatments) during December 2002.  He is currently a resident of El Paso Healthcare Center in El Paso, Illinois.  It is a nursing home facility for the mentally ill.
We are pleading with you to change his record to reflect that, during the time he served in the Navy, he was incapable of making rational judgements and therefore should have been given an honorable discharge.  E_ (Applicant) is a college graduate and, though he is incapable at this time of taking care of himself, he and I hope that with proper treatment and care he will be able to live a productive life.  We are available to you if you have any questions about this matter. Thank you for your consideration.”

Additional issues submitted by Applicant’s representative (Disabled American Veterans):

“Dear Chairperson:

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 evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Other Than Honorable Discharge to that of General Under Honorable Conditions.

The FSM served on active service from March 21, 1996 to December 6, 1996 at which time he was discharged due to an unauthorized absence from the Training Center at Great Lakes. But has additional service in the Army National Guard receiving an Honorable discharge from that branch in June 1998. 

The FSM contends the discharge is unfair as he could not be held liable for his actions due to his severe mental disorder, and seeks equitable relief in the form of a discharge upgrade and a change of the narrative reason to medical.

As this process was not allowed, this creates a need for a review of the application of the standard, for the Board to determine that the Applicant’s discharge was improper. The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted. See, SECNAVIST 5420.174 (c), Par. (f) (1).

In further support the FSM submits statements attesting to the severity of his condition and mental state. The most prominent is from Dr. D_ S_ D_, which notes the FSM suffers from Schizophrenia, Bi-Polar Disorder, and Shizoaffective Disorder. Any one of which, if in control of the FSM would keep him from making sound judgment decisions.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the Applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174C.

We ask for the Board’s 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.

Respectfully,”

Documentation

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

Honorable Discharge Certificate from United States Army, dated June 30, 1999
Applicant’s DD Form 214
Letters of Office – Guardian of Estate, filed August 1, 2000
Armed Forces of the United States identification card
Letter from Dewitt County Human Resource Center, Clinical Programs Manager, dated January 7, 2003
Twenty-three pages of Applicant’s medical record

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	960307 - 960320	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  960321		Date of Discharge:  961206

Length of Service (years, months, days):

	Active:    00  08  16	Does not exclude lost time
	Inactive:  None

Age at Entry:  25			Years Contracted:  4

Education Level:  16			AFQT:  95

Highest Rate:  SN

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:  83

*  No Marks Found

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 3630650.

Chronological Listing of Significant Service Events:

960821:	Applicant declared a deserter.

961105:	Charges preferred to court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 86: Unauthorized absence from 1600, 960722 to 961015.

961108:	Medical Examination:  Applicant evaluated by medical officer and found to be of normal mental status – no documented mental health/psychiatric illness in the past. Psychiatric evaluation not required.  Applicant understands the charges preferred against him and is capable in assisting in the preparation of his defense.  Applicant is fit for duty and should be held responsible for his actions.

961112:	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 from 1600, 960722 to 961015.  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.  

961209:	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 19961206 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 Applicant’s issues are without merit.  The Applicant was found by competent medical authority to be of normal mental status.  The evidence of record demonstrates that the Applicant was responsible for his conduct and that he should be held accountable for his actions.  In a signed statement, the Applicant requested an administrative discharge under other than honorable in lieu of a trial by court-martial.  He consulted with counsel and was fully advised of the implications of his request.  The Applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veteran’s benefits based upon his current enlistment.  He also understood he might 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.  Relief denied.

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, will change the reason for discharge if such a change is warranted.  The summary of service clearly documents that an administrative discharge in lieu of a trial by court-martial was the reason the Applicant was discharged.  No other Narrative Reason for Separation could more clearly describe why he was discharged.  To change the Narrative Reason for Separation would be inappropriate.  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, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.   At this time, the Board determined that the documentation submitted by the Applicant does not 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 14, effective 
03 Oct 96 until 11 Dec 97, 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 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.
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