Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: janet.goode
Company: NCPB

Docket No. ND08-00100

ex-EMFN, USN

Current Discharge and Applicant’s Request

Application Received:  20071024 
Characterization of Service Received:  UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge:  IN LIEU OF TRIAL BY COURT MARTIAL
Authority for Discharge:  MILPERSMAN 3630650

Applicant’s Request:	Characterization change to:  GENERAL (UNDER HONORABLE CONDITIONS)
			Narrative Reason change: NONE REQUESTED

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19900920 - 19910710  COG		 
Period of Service Under Review:
Date of Enlistment: 19910711			Period of enlistment:  4 Years  		Date of Discharge:  19980529
Length of Service:  03 Yrs 01 Mths 23 Dys	Education Level:  12		Age at Enlistment:  20	AFQT:  35
Highest Rank/Rate:  EMFN	Evaluation marks:  Performance: 3.7 (2)	Behavior:  3.9 (2)		OTA:  3.9 (2)
Awards and Decorations (per DD 214): NDSM and HSM

Periods of UA/CONF:  19940802 – 19980414 (3 years 08 months 12 days or 1351 days)

Types of Documents Submitted

Related to Military Service:	DD 214:  ☒	Service and/or Medical Record:  ☐		Other Records:  ☐

Related to Post-Service Period:	
	Employment:		☐	Finances:		☐	Education/Training:	☐
	Health/Medical Records:	☒	Substance Abuse:		☐	Criminal Records:	☐
	Family/Personal Status:	☐	Community Service:	☐	References:		☐
	
Additional Statements From Applicant:  ☐		From Representation:  ☐		From Member of Congress:  ☐
Other Documentation (Describe) ☐ 

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

Applicant’s Issues

1.  Youth and immaturity.
2.  Diagnosed with Bi-Polar and PTSD

Decision

Date:  20080214	DOCUMENTARY REVIEW	Location:  Washington D.C	 Representation:  NONE

By a vote of 5-0 the Characterization shall remain UNDER OTHER THAN HONORABLE CONDITIONS.
By a vote of 5-0 the Narrative Reason shall remain IN LIEU OF TRIAL BY COURT MARTIAL.

Discussion

Issue 1 (Equity):   The Applicant contends that his discharge was inequitable because of his youth and immaturity at the time.   The record shows that the Applicant was 20 years old when he enlisted.  This is significantly more mature than the average recruit, most of whom live up to their commitment of service to their country.  Furthermore, the Applicant’s served more than three years prior to initiating his period of unauthorized absence.  While the Applicant may feel that his immaturity was the underlying cause of his discharge, the record clearly reflects his willful misconduct.  In reviewing discharges the Board presumes regularity in the conduct of governmental affairs, unless there is substantial credible evidence to rebut the presumption.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence.  The Applicant’s DD-214 indicates that he requested to be discharge for the good of the service to escape trial by court-martial.  In this request the Applicant would have noted that his rights were thoroughly explained to him and that he received counsel or waived his right to consult counsel.  Additionally, the Applicant must have admitted guilt to the chargers preferred against him.  Based on the Applicant’s DD-214 it is presumed that these charges would have been his violation of UCMJ Article 85 (desertion).  Finally the Applicant would have certified a complete understanding of the negative consequences of his actions and that characterization of service could be under other than honorable conditions.  Violations of UCMJ Article 85 (desertion) carry a maximum penalty of a dishonorable discharge and up to two years of imprisonment if adjudicated by a court martial.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considers the discharge proper and equitable.  

Issue 2 (Equity):  The Applicant contends that his discharge is inequitable because of his diagnosis of Bi-Polar and PTSD.  There is no evidence in the record, nor has the Applicant produced any evidence, to support his issue of these conditions affecting his performance or even existing during his enlistment.  The record however, does fully document the Applicant’s 1351 days of unauthorized absence, and his subsequent request for separation in lieu of court martial.  Nothing indicates that the Applicant’s discharge was in any way inequitable.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considers the discharge proper and equitable.  

Pertinent Regulation/Law

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.  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 V, Para 502, Propriety and Para 503, Equity.

C.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 86.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  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 to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  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.”

Additional Reviews:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the 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 additional evidence related to this discharge.  Representation at a personal appearance hearing is recommended but not required.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service 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.

Employment/Educational Opportunities:  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.  

Reenlistment/RE-code:  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

Medical Conditions and Misconduct:  DoD disability regulations do not preclude a disciplinary separation.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record.  Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or “PTSD.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  

Automatic Upgrades - 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 may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

Issues Concerning Bad-Conduct Discharges (BCD) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief.  With respect to a discharge adjudged by a court-martial, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  

Board Membership:  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

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Nonjudicial punishment	SCM – Summary court-martial
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties
	CONF – Confinement		B&W – Confinement on bread and water			CC - Civilian conviction

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Nonjudicial punishment	SCM – Summary court-martial	
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties 
	CONF – Confinement		B&W – Confinement on bread and water