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

Docket No. ND09-01062

ex-BM2, USN

Current Discharge and Applicant’s Request

Application Received: 20090319
Characterization of Service Received:  UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge: IN LIEU OF TRIAL BY COURT MARTIAL
Authority for Discharge:  MILPERSMAN 1910-106 (IN LIEU OF TRIAL BY COURT MARTIAL)

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

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	19850613 - 19850820  COG	Active:	USN	19850821 - 19890706  HON
				USN	19890707 - 19950608  HON
				USN	19950609 - 20020919  HON

Period of Service Under Review:
Date of Enlistment:  20020920	Age at Enlistment:  37
Period of Enlistment:  3 Years  NO Extension
Date of Discharge:  20040226	Highest Rank/Rate:  BM2
Length of Service:  01 Year(s)   05  Month(s)   07 Day(s)
Education Level:  12	AFQT:  53
Evaluation Marks:	Performance:  4.0 (2)	Behavior:  3.0 (2)	OTA:  3.57

Awards and Decorations (per DD 214):	Pistol EX NDSM (2) SSDR (3) NAVY "E" AFEM GCM (3) NMCAM

Periods of UA:  20030716-20040113 (182 days) / 
             CONF:  In hands of civilian authority (IHCA) due to apprehension of UA (days NFIR)

NJP:  NFIR          SCM:  NFIR          SPCM:  NONE          CC:  NONE          Retention Warning Counseling:  NFIR

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

	Block 18, Remarks, should contain the statement: “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19890707 UNTIL 20020919”

The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate.

Types of Documents Submitted/reviewed

Related to Military Service:	
                                         DD 214:  ☒	 Service/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 Congress member:    ☐
                    Other Documentation:  ☐

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

Applicant’s Issues

1.  The Applicant feels his discharge was inequitable due to mitigating circumstances. 

Decision

Date:  20091105     	DOCUMENTARY REVIEW           Location:  Washington D.C.	    Representation:  NONE

By a vote of 4-1 the Characterization shall change to GENERAL (UNDER HONORABLE CONDITIONS).
By a vote of 4-1 the Narrative Reason shall change to SECRETARIAL AUTHORITY.

Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.  In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant’s record of service included a separation in lieu of trial by court-martial for violation of the Uniform Code of Military Justice (UCMJ): Article 86 (unauthorized absence for 182 days – apprehended).  Based on the Applicant’s DD Form 214, the Applicant requested separation in lieu of a trial by court-martial and his request was accepted.  Per the letter format when requesting separation in lieu of trial by court-martial, the member admits his guilt and acknowledges his understanding that if his discharge is Under Other Than Honorable Conditions, it may deprive him of virtually all veterans' benefits based upon his current period of active service, and that he may expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered in any branch of the Armed Forces or the character of discharge received there from may have a bearing.  With the Applicant’s clear understanding of the possible consequences, the command chose to separate him in lieu of trial by court-martial with an Under Other Than Honorable Conditions characterization.

Issue 1:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends his discharge was inequitable due to mitigating circumstances (mental health) as a result of family issues.  According to medical records, the Applicant was initially admitted to NAVMEDCEN Portsmouth Inpatient Psychiatry Unit for a week in April 2001, for depressed mood, suicidal ideations and multiple stressors (work/family).  He was again admitted on 22 November 2001 and discharged on 3 December 2001 with the same symptoms, which resulted in him being placed on limited duty.  He was reevaluated on 3 February 2002 and the Medical Board recommended continued limited duty for an additional four months.  In the Medical Board’s opinion, the Applicant suffers from a condition which temporarily renders him unfit, but he is considered psychiatrically fit for return to limited duty.  It appears the Applicant recovered fairly well, which enabled him to reenlist for his final time in order to make 20 years for retirement.  The Applicant had a relapse and was seen on 3 February 2003 due to personal stressors in life and again on 6 June 2003, when the Mental Health Staff finally recommended that he be discharged due to personality disorder.  The Applicant had threatened to act out in order to achieve a disciplinary discharge from the Navy.  Thirty-nine days later, the Applicant went into an unauthorized status until he was apprehended in January 2004.

The NDRB opined that the Navy tried to help the Applicant achieve his 20 years of service until retirement, but his mental health condition became such that it was not conducive to retain him any longer.  He had been hospitalized in the psychiatry ward at least twice, was put on limited duty for about 5 months and was subject to an NJP; all within 18 months of his final reenlistment on 9 September 2002.  So, the Applicant had a clear history of mental health problems prior to his last enlistment. Due to personal stressors, the Applicant was seen in February 2003 and then again in June 2003.  Based on his last visit, the Mental Health Staff recommended for him to be discharged, specifically stating that he was considered self-destructive and is a continuing danger to self and others.  Upon the last recommendation on 6 June 2003, the NDRB determined, by a 4-1 vote, that the command should have expedited the Applicant’s discharge by reason of Convenience of the Government via Personality Disorder.  The NDRB opined that had the command acted swiftly, the misconduct may or would have not have happened.  Also, the NDRB determined, by a vote of 4-1, that the Narrative Reason for Separation should be changed to Secretarial Authority.  Relief granted.         

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and service record entries, and discharge process, the Board found the discharge was proper but not equitable.  Therefore, the awarded characterization of service shall change to GENERAL (UNDER HONORABLE CONDITIONS), as requested by Applicant, and the narrative reason for separation shall change to SECRETARIAL AUTHORITY.  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his discharge.  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, and Post-Service Conduct.

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 30 May 2005, Article 1910-106, 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 IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications.

C.  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.

D.  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 (Unauthorized absence).

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe 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:  After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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.  There are veterans organizations such as the American Legion and the Association of Service Disable Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the NDRB’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 BCNR can make changes to reenlistment codes.  Additionally, the NDRB 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, 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 other medical related reasons.  Only the BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.  

Post-Service Conduct:  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  Outstanding post-service conduct, 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, is considered during Board reviews.  Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle.   The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate  in-service misconduct was an aberration and not indicative of the member’s overall character.

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 special 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.  The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership:  The names and votes of the members of the NDRB 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 – Non-judicial punishment	SCM – Summary court-martial
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties
	CONF – Confinement	CC - Civilian conviction	CCU - Correctional Custody Unit	BW – Confinement on bread and water

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