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NAVY | DRB | 2004_Navy | ND04-00012
Original file (ND04-00012.rtf) Auto-classification: Denied


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

ex-FR, USN
Docket No. ND04-00012

Applicant’s Request
The application for discharge review was received on 20031001. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing before the board in the Washington National Capital Region. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing. The Applicant listed the Disabled American Veterans as his representative on the DD Form 293.
Decision

A documentary discharge review was conducted in Washington, D.C. on 20040812. 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. “I received an Other than Honorable discharge, and I would like that changed due to the fact I left the Theodore Roosevelt stationed in Norfolk VA due to sleep walking which was documented and no one attempted to assist my problem which caused me to break my hand after continuous pleas . to be watched. I was then told just to go back to my rack. I would have loved to stay in the navy but due to the fact if no assistance and me putting my life at risk I left. The bone still has not properly healed in my left hand. I am currently attending college in pursuit of being a Lawyer Enclosed is my advisement sheet.”

 Issues submitted by Applicant’s counsel/representative ( VETERANS OF FOREIGN WARS, DISABLED AMERICAN VETERANS, AMERICAN LEGION, PRIVATE REPRESENTATIVE, CIVILIAN COUNSEL):
1. “ Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Other Than Honorable (0TH) discharge to that of Honorable.

The FSM served on active service from June 21, 2000 to October 19. 2001 at which time he was discharged in lieu of trial by Court Martial.

The FSM contends the current discharge is improper because he left his ship due to his sleep walking. He states this disability is documented and although he asked for assistance he was never given any, despite the continual pleas.

This creates a need for a review of the application of the standard, for the Board to determine that the applicant’s discharge was improper. The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted. See, SECNAVIST 5420.174 (c), Par. (f) (1).

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174C.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the applicant.

Respectfully,
K_ L. G_
National Service Officer

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Tuition Bill Statement, BMCC-CUNY dated 20 August 2003.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        000613 - 000620  HON
         Inactive: USNR (DEP)     None

 Period of Service Under Review :
Date of Enlistment: 000621               Date of Discharge: 011019

 Length of Service (years, months, days):

         Active: 00 07 14
         Inactive: None

 Age at Entry: 22                          Years Contracted: 4

 Education Level: 12                        AFQT: 53

 Highest Rate: FR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF*                 Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 253

*No marks found in Applicant’s service record

 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 :

001019:  Applicant commenced a period of UA. Terminated on 001022.

001105:  Applicant commenced a period of UA. Terminated on 001105.

001211:  Applicant commenced a period of UA. Terminated on 010107.

010206:  Applicant commenced a period of UA. Terminated on 010918

 No discharge package available, presumably Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20011019 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 presumption of regularity of governmental affairs was applied by the Board in this case in the absence of complete discharge package (E).

Issue 1: In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. The Applicant alleges that the misconduct resulting in his other than honorable discharge was a result of a sleepwalking condition. Specifically, Applicant claims a sleepwalking disorder of such severity that he broke his hand. Additionally, Applicant claims that his command ignored his condition and that his continued presence aboard the ship would have “put [his] life at risk.” While the record is incomplete, it does contain evidence that Applicant engaged in four separate periods of unauthorized absence, the longest being greater than seven months. Furthermore, the record indicates that Applicant accepted a separation in lieu of trial by court-martial for his misconduct. While the record does contain evidence of Applicant’s misconduct, it contains no evidence of his sleepwalking or broken hand. Applicant’s allegation that his life was at risk if he had continued his service is unsubstantiated. Applicant voluntarily chose to waive his defense, admit his guilt, and accept an other than honorable discharge. Given these facts, Applicant has failed to rebut the presumption of regularity in the conduct of governmental affairs. 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. The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time. 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 29, effective
11 Jul 2000 until 21 Aug 2002, 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 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 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.
DD Form 293.

E. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, 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 “ afls14.jag.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:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023      


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