Author: CAP
Last saved by: shirley.robertson
Company: NCPB

Docket No. ND03-01134

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

ex-ITSN, USN
Docket No. ND03-01134

Applicant’s Request

The application for discharge review was received on 20030618.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests 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 20040430.  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 was discovered by the NDRB.  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 stated

Applicant’s issues, as stated on the application:

“1.  To:	Naval Discharge Review Board. (NDRB).

Subject:	Respectfully requesting review for upgrade of military discharge.

Reference:	Issues to section 8 of form DD 293 10 U.S.C. 1553.

#8

A.)	Separation from the U.S. Navy was contingent upon the convenience of the U.S. Government under other than honorable conditions for the absence of work during the period from 06-13-02 until 12-22-02 was due to immediate family medical hardship.

B.)	Review of medical information was substantiated by both a physician in professional care and of family members. In turn both decided input of an additional family member was necessary to ensure the immediate needed care of either family member, T___ A. B___/C___ T. B___, (sister/father of claimant J__ C. B___.

C.)	Review of family medical history revealed C___ T. B___ (father) both of applicant J___ C. B___ & sister indicated need for a additional family member support system as well. Prior medical history indicates previous diagnosis of both prostrate and colon cancer. At elderly age of nearly 71 yrs. of age, father also exhibits condition of dementia disease, a declining mental capacity inhibiting his ability to provide for the proper care of daughter T____ A. B___, sister of applicant J___ C. B___.

D.)	Review of family history revealed T___ A. B___ sister of claimant J___ C. B___ has indicated being diagnosed with a mental illness (schizophrenia) and on SSI disability. Due to this overwhelming condition and health issue this evens strengthens the imperative need for additional family member care within the support system, making it an inevitable decision for the necessity of applicant J___ C. B___ to provide care for his immediate sister, T____ B____ and father C___ B___ during those times of absence.

E.)	Listing issues based on these and other serious concerns, both C___ B____ (father) and her physician Dr. S____ came to the decision in confidence the eminent need for an additional family member, J____ C. B___ to provide additional family support necessary to achieve and maintain their goal. This in additional family support necessary to achieve and maintain their goal.  This goal in and of itself as defined is to provide assistance towards T___ A B___ well being and treatment of her mental condition towards her recovers

F.)	In final, based on those facts listed above, John C. Brower was disdharged from the U.S. Navy for the convenience of the government under these unfortunate circumstances due to a conclusive family medical hardship, in turn his discharge will be upgraded to general under honorable conditions based upon these exigent circumstances listed above. Information provided by B..J. W__, PN1(SW/AW),USN, By DIROIC.

G.) Witnesses pertinent to application for the review process of similarity to this
Case are provided below:

1.) D__ B___
State of Michigan
Department of Career Development
Veterans Employment Representative
(734) 5 13-4900

2.) Dr. S____
11677 Beech Daly
Redford MI. 48239.
(313) 937-9500

3.) B.J W__, PN I (SW AW) USN.
SSC, NTC, Great Lakes, IL.
(847) 688-5550

Documentation

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

Copies of Medical Documents (14 pages) 
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	010925 - 011118	COG

Period of Service Under Review:

Date of Enlistment:  011119		Date of Discharge:  030117

Length of Service (years, months, days):

	Active:    00  07  18
	Inactive:  None

Age at Entry:  33			Years Contracted:  4 

Education Level:  16			AFQT:  73

Highest Rate:  ITSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA*	Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  197

*No Marks Available for review

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:

020304:	To UA.

020311:	From UA (7 days/S)

020529:	NJP for violation of UCMJ, Article 86: (3 Specifications), Unauthorized absence.
	Award:  Forfeiture of $289.00 pay per month for 1 month, restriction and extra duty for 14 days, reduction to next inferior pay grade (suspended for 6 months).  No indication of appeal in the record.

021222:	Charges preferred to summary court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 86: Did on or about 0600, 020612 without authority, absent himself from his organization, to wit: Service School Command, located at Great Lakes, IL, and did remain so absent until on or about 2340, 021222 (190 days/S).

021230:	Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.  He waived his rights to consult with counsel and was fully advised of the implications of his request.  The Applicant stated he understood the elements of the offenses 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: Did on or about 0600, 020612 without authority, absent himself from his organization, to wit: Service School Command, located at Great Lakes, IL, and did remain so absent until on or about 2340, 021222 (190 days/S).  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.  

030106:	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 20030117 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.  While he may feel that his and medical problems of his family medical problems were contributing factors, they do not mitigate the Applicant’s misconduct.  A characterization of service of under other than honorable conditions is warranted when the member’s conduct constitutes a significant departure from that expected of a Sailor.  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.  The Applicant stated he understood the elements of the offenses with which he was charged.  He admitted he was guilty of all the charges preferred against him.  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.   

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 or any other evidence relating to his discharge 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), re-issued October 2002, effective 22 Aug 2002 until Present, 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 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: