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

ex-ITSA, USNR (TAR)
Docket No. ND05-00647

Applicant’s Request

The application for discharge review was received on 20050304.  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 listed a private representative as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050727.  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.  “That a mental illness started when I was in Navy.”

Additional issues submitted by Applicant’s counsel/representative (Private Representative):

2.  “To Whom It May Concern:

We are writing to request that M_ L_’s (Applicant) (social security number deleted) discharge be upgraded to honorable or medical rather then less then honorable  We are request this due to the fact that his mental illness first manifested itself during his time of service.  The diagnosis that was given to Mr. L_ (Applicant) at the time of his hospitalization when he was in the service in my professional opinion could not be more clinically inappropriate.  Over the time I have known Mr. L_ (Applicant) he has only shown symptoms Major Depression Mr. L_ (Applicant) has also exhibited psychotic features with his depression.  Never have I seen any antisocial traits exhibited by Mr. L_ (Applicant).  The propose of this upgrading Mr. L_ (Applicant) discharge status is to make him eligible for veterans benefits.  M_ (Applicant) is currently homeless and without any benefits.  If you have any other questions please feel free to contact me at (telephone number deleted).

Sincerely
[signed]
C_ C_ MS. QMHP, LPC”

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)
Letter, dated February 14, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive: None
	Active:   None

Period of Service Under Review:

Date of Enlistment:  990417		Date of Discharge:  000621

Length of Service (years, months, days):

	Active:    01  00  04	(Does not exclude lost time)
	Inactive:  00  02  00

Age at Entry:  18			Years Contracted:  8

Education Level:  11			AFQT:  39

Highest Rate:  ITSR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NA*		Behavior:  NA		OTA:  NA

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  4

*Not available

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:

990618:	Commenced active duty under the TAR program.

000404:	Navy Medical Center, San Diego, Mental Health Service narrative summary: Initial Diagnostic Assessment: AXIS I: Adjustment disorder with mixed disturbance of emotions and conduct.  AXIS II: Antisocial personality disorder.  AXIS III: No diagnosis.  AXIS IV: routine military stressors, occupational problem.  AXIS V: (admission) Some danger of hurting others; (current) Moderate symptoms or difficulty in functioning.  Administrative separation is recommended.  The Applicant possessed substantial capacity to appreciate the wrongfulness of his conduct and the ability to conform his behavior to the requirements of law.  The doctors were of the opinion that  the Applicant’s ability to adhere to the right was not impaired.

000414:	Applicant to pre-trial confinement at NAVCONBRIG Miramar.

000501:	Charges preferred to special court-martial for violation of the Uniform Code of Military Justice Article 86 (2 specs):  (1) Absent from unit on 24 March 2000 to 28 March 2000 (4 days), (2) Absent from unit 0730-2340, 13 April 2000, Article 89:  Behave himself with disrespect toward Lieutenant Commander M_ D. C_ by saying to him “Shut the f_ up dude, I don’t need to hear any of that, or words to that effect on 14 April 2000, Article 91:  Disrespectful in language towards Information Systems Technician Second Class A_ P_, Information Systems Second Class D_ V_, and Information Systems Third Class T_ H_, by saying to them  “f_ that, I’m doing a f_ing thing, f_ you all,” or words to that effect on 20 March 2000, Article 128:  Unlawfully strike Signalman First Class (SW) L_ A. M_ in the face and mouth with his fist(s) on 14 April 2000, Article 134:  Disorderly conduct on 20 March 2000.

000531:	Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.  He consulted with counsel.  The Applicant stated he understood the elements of the offenses with which he was charged, and admitted he was guilty of violating UCMJ, Article 86 (2 specs), 89, 91, 128, 134.  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.

000531:	First Endorsement:  Pre-trial Assistance Counsel forwarded the request for an administrative discharge in lieu of trial by court-martial, requesting approval.

000601:	Second Endorsement:  Commanding Officer, USS Wadsworth (FFG 9), forwarded Applicant’s request for an administrative discharge in lieu of court-martial, requesting approval.

000602:	Commanding Officer, USS Wadsworth (FFG 9), recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

000621:	DD Form 214:  Applicant discharged under other than honorable conditions in lieu of a trial by court-martial, authority:  NAVMILPERSMAN, Article 1910-106.

The Service Record contains a partial Administrative Discharge Package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000621 under other than honorable conditions in lieu of a trial by court-martial (A and B).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  The Board presumed regularity in the conduct of governmental affairs (E).

Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question.  No such impropriety or inequity is evident during the Applicant’s enlistment.  In a signed statement, 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 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.  The Applicant stated he understood the elements of the offenses with which he was charged.  He admitted he was guilty of violating UCMJ Articles 86, unauthorized absence, 89 disrespect toward a superior commissioned officer, 91, disrespect toward a superior noncommissioned or petty officer, 128, assault consummated by battery, and 134., disorderly conduct.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy.  Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant contends that his discharge should be upgraded because he was suffering from a mental condition while on active duty.  A mental condition will not automatically excuse a servicemember from legal liability for his misconduct.  The Applicant must show a lack of mental responsibility by virtue of being unable to appreciate the nature and quality or the wrongfulness of his acts.  The Applicant’s record contains evidence of a psychiatric evaluation conducted on 000414.  At that time, the examining physicians concluded that the Applicant possessed substantial capacity to appreciate the wrongfulness of his conduct and was able to conform his conduct to the requirements of the law.  Furthermore, the physicians stated that the Applicant’s ability to “adhere to the right” was not impaired.  Based upon that diagnosis, the Board concluded that the nature of the Applicant’s mental condition was not of such a nature to relieve him from responsibility for his misconduct.  As such, the Board found the discharge proper and equitable as issued.  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.  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 18, effective 
12 Dec 1997 until 10 July 2000, 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 89, disrespect toward superior commissioned officer, Article 91, disrespect toward superior noncommissioned or petty officer, or Article 128, assault consummated by battery, 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 V, Para 502, Propriety.

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

E.  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.

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