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NAVY | DRB | 2004_Navy | ND04-01140
Original file (ND04-01140.rtf) Auto-classification: Denied


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

ex-AA, USN
Docket No. ND04-01140

Applicant’s Request
The application for discharge review was received on 20040707. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record review. The Applicant did not list a representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20050304. 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 am requesting an upgrade in my discharge because I have recently applied to the State of North Carolina to become a State Trooper and it is a requirement to have an Honorable Discharge. I feel that since my discharge I have been an outstanding citizen. This opportunity will allow me to protect and serve my community.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
State of North Carolina State Trooper Employment Application (2 pages)
Arrest Record from San Diego County Sheriff’s, dated May 19, 2004
Criminal Record Check from State of North Carolina, dated May 11, 2004 (2 pages)


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)              970521 - 970716  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 970717                        Date of Discharge: 991102

 Length of Service (years, months, days):

         Active: 00 07 07 (lost time excluded)
         Inactive: None

 Age at Entry: 17 (Parental Consent)      Years Contracted: 4

Education Level: 12                                 AFQT: 35

 Highest Rate: AA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA*                          Behavior: NMA             OTA: NMA

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 608

*No Marks made available for review

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 :

980116:  Medical evaluation by a military psychiatrist concluded that the Applicant is not currently suicidal or homicidal, however, he manifest a long-standing disorder of character and behavior which is of such severity as to interfere with serving adequately on active duty.

         AXIS I: Adjustment Disorder with Depressed Mood, Occupational Problem
        
         AXIS II: Borderline Personality Disorder traits
980123:  Applicant notified of intended recommendation for discharge and the least favorable characterization of service General (under honorable conditions) for the convenience of the government due to a personality disorder, based upon a diagnosed personality disorder as evidenced by your mental health evaluation of 980116.

980126:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ, Article 27(b), elected to waive all rights.
980205:  Commanding officer recommended discharge under honorable conditions (general) for the convenience of the government due to a personality disorder, based upon a diagnosed personality disorder as evidenced by AA S_’s mental health evaluation of 980116. Commanding Officer’s comments: I have administratively discharge AA S__ from the naval service at the convenience of the government as recommended by the evaluating psychologist. Lieutenant Commander M. F. C__, MC, USNR, competent medical authority at Naval Hospital Bremerton, has indicated the service member will likely experience ongoing adjustment problems during his enlistment and recommends an expeditious separation. Because the medical recommendation was made prior to the 180 th day the service member was on active duty, I have directed his immediate entry level separation.

980210:  UA this date at 0700.
991029:  UA from TPU NAVSTA San Diego, CA since 0700, 980210. Apprehended 1815, 991012 by Cumberland County Sheriff’s Department, Fayetteville, NC for UA/DES only. No civil charges pending. Returned to Military Control 1915, 991012 by NACIC North Chicago, IL. Retained onboard TPU NORVA for disposition. Restored to full duty status 1915, 991012.

991102:  Applicant discharged under other than honorable conditions by reason of separation in lieu of a trial by court-martial, authority: MILPERSMAN 1910-106.

Complete Discharge Package missing from record

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19991102 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: 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 there from 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. A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor. The Applicant’s service was marred by unauthorized absences totaling 608 days. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service. Relief denied.

 The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. Relief denied.

The following is provided for the edification of the Applicant. 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 the naval service. The NDRB is authorized, however, 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 should be provided to the Board include proof of educational pursuits, verifiable employment records, and documentation of community service. The Applicant’s evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his discharge.

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 additional documentation to support any claims of post-service accomplishments or any other evidence relating 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 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 [e.g., 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, 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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