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Docket No. ND05-00143

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

 ex-BMSN, USN
Docket No. ND05-00143

Applicant’s Request

The application for discharge review was received on 20041029.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a documentary record discharge review.  The Applicant listed American Legion as representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050304.  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).  Discharged in absentia.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “Dear Sirs,
The reason for my discharge involved more than one situation.  I went in the Navy to take care of my daughter with cerebral palsy.  My behavior was excellent until the tragic turn of events.  The car wreck May 14, 2004 began my Post Traumatic Stress Disorder followed by the domestic violence I experienced 2 months later in July (14) 2004.  I was seeking help the best way i knew how.  After that the sexual harassment case against a fellow ship mate had me untrusting and feeling unsafe.  My mental health became unstable to the point where I tried to commit suicide in May 2003.  All the therapy and medications I've been through during my enlistment, I have to seek here.  I’m taking both therapy and medications to control my anxiety of being around people, crying and depressed even when I'm around my daughter.  I am a shut in and afraid to leave my home – afraid to be in a car from the accident – afraid to sleep because i hear the petty officer who beat me, putting me down.  I am afraid and i know i need the help and it seems that I’m losing the fight to get my life back.  I am locking doors all doors and checking windows because some guy in the navy talked of raping me – my behavior and my life has been destroyed because of these situations.”

American Legion submitted no issues for consideration.

Documentation

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

Applicant’s DD Form 214 (Member 1 and 4)

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	980720 - 990723	ELS
		   USNR (DEP)	991130 - 000228	COG

Period of Service Under Review:

Date of Enlistment:  000301		Date of Discharge:  030520

Length of Service (years, months, days):

	Active:    03  02  19
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  54

Highest Rate:  BMSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (2)		Behavior:  3.50 (2)		OTA:  3.59

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, NDSM

Days of Unauthorized Absence:  1

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:

030424:	Charges preferred for violations of the Uniform Code of Military Justice (UCMJ) Article 89: Disrespect toward Lieutenant on 030408, to wit: contemptuously turning from and leaving the Lieutenant wile she was talking to her, Article 91: Disrespectful in language toward Chief on 030306, to wit: by saying “No, I don’t want to,” “No why should I,” and “I am not going anywhere,” Article 92 (4 specs): (1) Fail to obey lawful order issued by Chief on 030306, to wit: not returning to the Master-at-Arms office, (2) Fail to obey lawful order issued by Lieutenant on 030408, to wit: not stopping and walking into the female head, (3) Fail to obey lawful order issued by Chief on 030408, to wit: not returning to the Master-at-Arms office, (4) Failure to obey lawful order issued by Chief on 030408 to have a seat and stay in the training room, to wit: by getting up and walking down the hallway toward the TPU Quarterdeck, Article 117: Wrongfully use words on 030408 towards Lieutenant, to wit: “No bitch is going to tell me what to do,” Article 128 (3 specs): (1) Assault Postal Clerk Third Class by stabbing her in the left arm with an earring on 030306, (2) Assault Postal Clerk Third Class by punching her in the left arm on 030306, (3) Assault Electronics Warfare Technician First Class by stabbing him in the right shoulder with an earring on 030306.

030429:	Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.  She consulted with counsel and was fully advised of the implications of her request.  The Applicant stated she understood the elements of the offenses with which she was charged, and admitted she was guilty of all the charges preferred against her.  Specifically, she admitted to violating Articles 89, 91, 92, 117, and 128 of the UCMJ.  The Applicant stated she was completely satisfied with the counsel she had received. The Applicant understood that if discharged under other than honorable conditions, it might deprive her of virtually all veterans' benefits based upon her current enlistment, and that she 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.

030506:	Commanding Officer, Navy Region Southwest Transient Personnel Unit, recommended approving the Applicant’s request for an administrative separation in lieu of a trial by court-martial.

030509:	The Commander, Navy Region Southwest, exercising GCMCA, approved the request for an administrative separation in lieu of a trial by court-martial, and directed Applicant’s discharge.

030519:	Applicant to unauthorized absence 0730.

030520:	Administratively returned from unauthorized absence for the purpose of discharge in absentia.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged, in absentia, on 20030520 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 contends that her problems in the Navy can be attributed to her posttraumatic stress disorder, automobile accident, sexual harassment and her resulting “unstable” mental health.  While she may feel that her personal problems and medical condition are the underlying cause of her misconduct, the record clearly reflects her willful misconduct and demonstrated she was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for her conduct or that she should not be held accountable for her actions.  Relief denied.

In a signed statement, the Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.  She consulted with counsel and was fully advised of the implications of her request.  The Applicant understood that if discharged under other than honorable conditions, it might deprive her of virtually all veterans' benefits based upon her current enlistment, and that she 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.  The Applicant stated she understood the elements of the offenses with which she was charged.  She admitted she was guilty of violating Articles 89, 91, 92, 117 and 128.  Violations of Articles 89, 91, 92 and 128 are considered serious offenses.  Relief is not warranted.

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided sufficient documentation for the Board to consider.  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 documentation to support any claims of post-service accomplishments or any other evidence related to her 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, Articles 86, disrespect toward superior commissioned officer, 91, insubordinate conduct, 92, failure to obey an order, 128, assault, upon conviction by a Special or General Court-Martial, in accordance with the Manual for Courts-Martial.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review 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.