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NAVY | DRB | 2004_Navy | ND04-01006
Original file (ND04-01006.rtf) Auto-classification: Denied


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

ex-EMFN, USN
Docket No. ND04-01006

Applicant’s Request
The application for discharge review was received on 20040608. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review. The Applicant listed the Los Angles County Military & Veterans Affairs as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041222. 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 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 should have been released from service for medical reasons not disciplinary reasons. I developed a medical condition while at the Naval Academy but was treated as if I was a disciplinary problem.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
DVA decision document, 3 pages.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
Inactive: USNR (DEP)     940405 - 941002  COG
Active: USN                        941003 - 970630  RELACDU (Enroll Naval Academy)
Active: USN(MIDN)        970701 – 980329  Disenrolled Naval Academy/
 Resumed Enlisted Status
Period of Service Under Review :
Date Resumed Enlistment as Enlisted Member: 980330

 Date of Discharge: 990126

 Length of Service (years, months, days):         Active: 00 09 27         Inactive: None

 Age at Entry: 22                          Years Contracted: 4 (24 months extension)

 Education Level: 12                        AFQT: 97

 Highest Rate: EM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF*                 Behavior: NMF             OTA: NMF
*No marks found in service record

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, ERM, PSM

 Days of Unauthorized Absence: None

 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 :

970630:  Released from active duty and enrolled in the Naval Academy having completed 2 year 8 months 27 days of active duty.
970701:  Enrollment in the Naval Academy as a Midshipman.

 980329:  Discharged from the Naval Academy by reason of Failure to Complete a
Course of Instruction and resumed enlisted status.
980330:  Resumed active duty as an enlisted member to complete active service obligation to expire 2 October 2000 and Reserve Obligation Termination Date of 4 April 2002.
981109:  NJP for violation of UCMJ, Article 86: Fail to go to appointed place of duty on about 5 Nov 1998. Article 92: Disobey lawful order to return to USS Pasadena.
         Award: Forfeiture of ½ pay per month for 2 month(s), restriction and extra duty for 60 days, RIR. No indication of appeal in the record.
Unknown:         Retention Warning: Advised of deficiency (UA, failed to obey lawful order), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. [Extracted from CO’s letter of 981221].

981112:  Applicant violated Retention Warning [Extracted from CO’s letter of 981221].
981113:  NJP for violation of UCMJ on 981112 [Extracted from CO’s letter of 981221].

981123:  Applicant apprehended, charged, placed in pre-trial confinement and his case referred to Special Court-Martial. [Extracted from CO’s letter of 981221].

981214:  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. 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.

981231:  Commander, Submarine Force, U.S. Pacific Fleet approved the request for an administrative separation in lieu of a trial by court-martial, and directed Applicant’s discharge.

*Parts of discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19990126 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 a complete discharge package (E).

Issue 1. On 19981214, the Applicant requested discharge for the good of the service to escape trial by court-martial. In the request for discharge, the Applicant noted that his counsel had fully explained the elements of the offense(s) for which he was charged and that he was guilty of the offense(s). He further certified a complete understanding of the negative consequences of his actions and that characterization of service would be under other than honorable conditions. Relief denied.

The Board found no indication from the service record and documentation provided by the Applicant that he was denied proper medical care or that he should have been discharged for “medical reasons.” Regarding the Applicant’s post-service diagnosis of Bipolar Disorder, the mere presence of a personality disorder is not a bar to Naval Service. While the Applicant may feel that his medical condition was a factor that contributed to his actions, the record clearly reflects his disregard for the requirements of military discipline and demonstrated that he was unfit for further service. There is no evidence in the record to suggest that Applicant was not responsible for his misconduct or that he should not be held accountable for his actions. Therefore, the NDRB considered the Applicant’s discharge proper and equitable. 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. 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 18, effective
12 Dec 1997 until 10 July 2000, 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 92, disobey a lawful order, 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, 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 “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


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