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Docket No. ND06-00814

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

FOR OFFICIAL USE ONLY

ex-ENFN, USN
Docket No. ND06-00814

Applicant’s Request

The application for discharge review was received on 20060427.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable or general (under honorable conditions).  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20070405.  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 a trial by court-martial.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

Equity – Did not receive adequate counsel during the discharge process

Equity – Not offered mental treatment before UA and discharge

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Statements from Applicant (13)
Applicant’s DD Form 214 (Member 4)
Leave and Earning statements (3)
Twelve pages from Applicant’s service records
Photograph of USS BREWTON FF 1086
Letter from D_ T. L_ Ph.D., Clinical Psychologist, dated April 13, 2006
Letter from G_ I_, MD, Staff Psychiatrist, dated January 18, 2006
Character Reference ltr from A_ M_, dated March 3, 2006
Character Reference ltr from K_ F_, dated March 9, 2006
Letter from Department Veterans Affairs to Applicant, dated March 2, 1993
Two photographs

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19880429 - 19881004	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19881005		Date of Discharge:  19910618

Length of Service (years, months, days):

	Active:    02  08  14  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  31 days
	Confinement:		  None

Age at Entry:  24

Years Contracted:  4

Education Level:  10 GED			AFQT:  86/71

Highest Rate:  EN3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.4 (1)			Behavior:  3.8			OTA:  3.60

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: 

881018:	Drug and Alcohol Abuse Report: Marijuana abuse, less than monthly, ashore off duty.  Service directed urinalysis on 881005.  Commanding Officer recommended retention, Level I treatment and written warning.  Comments:  SNM tested positive for THC in the accession pipeline urinalysis.

910416:	Applicant to unauthorized absence at 1400.

910424:	Report of Declaration of Deserter.  Applicant declared a deserter on 910422 having been an unauthorized absentee since 1400, 910416 from USS BREWTON.

910516:	Applicant from unauthorized absence at 1530 (31 days/surrendered).

910517:	Report of Return of Deserter.  Applicant surrendered to military authorities on 910516 (1530) at TPU Treasure Island, CA.  Returned to military control 910516 (1530).

910604:	Applicant examined and found physically qualified for separation.  Applicant states that he is “in good health and taking no medication.”

910605:	Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 86:  Did, on or about 910416, without authority, absent himself from his unit and did remain so absent until on or about 910516.

910605:	Applicant notified of charges.

910605:	Charges referred to special court-martial.

910610:	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 910416 to 910516.  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.  The Applicant stated that he understood he would be administratively reduced to E-3.

910610:	Applicant’s statement.

910611:	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.

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 19910618 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 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).

The Applicant requests upgrade of his discharge in part because he was not informed by his counsel that he could request a general discharge in his request for Separation in Lieu of Trial.  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 Article 86 (unauthorized absence).  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that advice of counsel was defective.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  Relief is not warranted.

The Applicant contends that his problems in the Navy can be attributed to “anxiety disorder.”  While he may feel that his mental condition was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and the command decision to hold him responsible for that misconduct by approving a Separation in Lieu of Court Martial at the request of the Applicant.  Prior to discharge, the Applicant was examined and found physically qualified for separation.  The Applicant did not complain of mental problems during his separation physical.  In fact he indicated that he 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 them.  However, even if the Applicant could show the existence of a medical condition, such condition would neither amount to a justification nor to a defense for the Applicant’s own misconduct.   The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant’s allegations, that he was denied assistance and counseling for his problems, do not refute the presumption of regularity in this case. Relief denied.

The Applicant wants an upgrade in order to receive medical benefits.  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge. 

The following is provided for the edification of the Applicant.  The Applicant has exhausted his opportunities for review by the NDRB because his discharge occurred more than 15 years ago.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of Naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560A), Change 7, effective 
25 May 89 until 14 Aug 91, 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.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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