Author: CAP
Last saved by: joyce.meeks
Company: NCPB

Docket No. ND06-00320

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

FOR OFFICIAL USE ONLY

 ex-HN, USN
Docket No. ND06-00320

Applicant’s Request

The application for discharge review was received on 20051206.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant designated American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20061025.  After a thorough review of the available 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 a trial by court-martial.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application and attached letter:

“I feel that I’ve honorably served my country
my bipolar disorder & seizure disorder was a direct cause of my action.

Dear Sir. Please allow me to respond to concern’s of matter of my discharge.  

At the time of my discharge, I was returning from my tour in the Persian Gulf.  Shortly after I had a medical setback I was Hospitalized at the Walter Reed Hospital. were I was told I suffer from a seizure disorder.  They the Navy sent me to Camp Lejuene for medical treatment in to see a specialist NERO MD I was told by this MD. that I have Gram moul Seizure. in that I would be discharge.  the news place me into a depression.  Then I received news that my house was in foreclosure.  My children mother was taken the money I sent to her for my house payment for herself when I was in the Gulf War, so I made a request to go on leave to see if I could save my home.  Finding out my back payment. where to much for me to pay I was force to turn my home over.  I fell into a deep depression not knowing my Bipolar disorder played a part.  I stayed lock up in my building wanting to die. after 29 day or more I was told to leave. I went to Bethesda Navy Base in turn myself in.  Sir if you check my military record I always received a good report with high marks most of them 4.0 please check. I’ve serve in the Marines & Navy I’m a good me I love my country I earned my way.  Please help F_ Y_ (Applicant)”

Applicant’s representative, the American Legion, submitted no issues for consideration.

Documentation

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

Request Pertaining to Military Records
Representative Appointment Claimant Application, dtd November 9, 2005 (3 pgs)
American Legion Cover Letter, dtd November 29, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19881130 - 19881205	COG
	Active:    None^*

^* The Applicant’s supporting document, “Request Pertaining to Military Records,” filled out by the Applicant, shows that the Applicant served in Marine Corps from August to December 1977 (Active Duty) and 1977 to 1981 (Reserve).  Applicant’s service record contained no information regarding these periods.

Period of Service Under Review:

Date of Enlistment:  19881206		Date of Discharge:  19921009

Length of Service (years, months, days):

	Active:    03  10  04  (Does not exclude lost time)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  167 
	Confinement:		  None

Age at Entry:  28 

Years Contracted:  4 

Education Level:  12				AFQT:  56

Highest Rate:  HN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.2 (3) 		Behavior:  3.1 (3)		OTA:  3.27

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal

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

UNDER OTHER THAN HONORABLE CONDITIONS/separation in lieu of trial by court martial, authority:  MILPERSMAN, Article 3630650.

Chronological Listing of Significant Service Events: 

891003:	Applicant to unauthorized absence at 0700 on 891003.

891016:	Applicant from unauthorized absence at 0800 on 891016.

891107:	NJP for violation of UCMJ, Article 86: Unauthorized absence (13 days).
Award:  Forfeiture of $335.00 pay per month for 2 months, extra duty for 45 days.  No indication of appeal in the record.

910401:	Applicant to unauthorized absence at 0001 on 910401.

910429:	Applicant from unauthorized absence at 0815 on 910429.

910520:	NJP for violation of UCMJ, Article 86: Unauthorized absence 30 March 91 to 29 April 91.
Award:  Oral reprimand, 15 days restriction to the limits of the station, extra duties for 15 days.  Reduction to next inferior pay grade (reduction suspended for 3 months).  No indication of appeal in the record.

910521:	Retention Warning:  Advised of deficiency (Violation of Article 86 – (Unauthorized Absence)), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910827:	Applicant to unauthorized absence at 0701 on 910827.
 
910930:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 910927 having been an unauthorized absentee since 0701, 910827 from 2D Marine Division, 08321.

911015:	Applicant surrendered to military authorities on at 1300 on 911015.

920422:	Applicant to unauthorized absence at 0700 on 920422.

920527:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 920522 having been an unauthorized absentee since 0700, 920422 from 2^ND MDIV FMF LNT, 08321.

920708:	Applicant from period of unauthorized absence, apprehended.

920818:	Charges preferred for violations of the Uniform Code of Military Justice Article 86 (2 specs):
 Spec 1: In that Hospitalman F_ L. Y_ (Applicant), U.S. Navy Headquarters Company, 8^th Marines, 2d Marine Division, did, on or about 910827, without authority, absent himself from his unit, to wit: Company G, 2d Battalion, 4^th Marines, 8^th Marine Regiment, 2d Marine Division, located at Camp Lejeune, North Carolina, and did remain so absent until on or about 911015.
Spec 2: In that Hospitalman F_ L. Y_ (Applicant), U.S. Navy Headquarters Company, 8^th Marines, 2d Marine Division, did, on or about 920422, without authority, absent himself from his unit, to wit: Headquarters Company, 8^th Marines, 2d Marine Division, located at Camp Lejeune, North Carolina, and did remain so absent until he was apprehended on 920708. 

920819:	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 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: Unauthorized Absence.  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.

920917:	Commander, 2d Marine Division, exercising GCMCA, approved the request for an administrative separation in lieu of a trial by court-martial, and directed Applicant’s discharge.

Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19921009 in lieu of a trial by court-martial (A and B) with a service characterization of under other than honorable conditions.  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).

When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  An under other than honorable conditions  discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.  The Applicant’s service was marred by a retention warning and two nonjudicial punishment proceedings for violations of Article 86 of the UCMJ.  The Applicant also had two periods of unauthorized absence that were not adjudicated due to the Applicant’s separation in lieu of trial.  The Applicant’s service is marred by a total of 167 days of unauthorized absence.  The Applicant’s two periods of unauthorized absence in excess of 30 days are serious offenses for which a punitive discharge is authorized if adjudged as part of the sentence upon conviction at special or general court-martial.  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 and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant implies his discharge is inequitable because his seizures, depression, bipolar disorder and personal problems caused his misconduct.  While he may feel that his medical condition and personal problems were the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  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 and admitted guilt to those charges.  Relief denied.

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 any relevant post-service documentation for the Board to consider.  Relief on this basis is not warranted.

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), effective 15 Aug 91 until 
04 Mar 93, 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 5420.174D 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.

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