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NAVY | DRB | 2005_Navy | ND0501300
Original file (ND0501300.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-ENFR, USN
Docket No. ND05-01300

Applicant’s Request
The application for discharge review was received on 20050727. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). The Applicant requests a documentary record discharge review. The Applicant designated Disabled American Veterans as the representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060926 . 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 and reason for discharge shall not change. The discharge shall remain Under Other Than Honorable Conditions in lieu of a trial by court-martial .



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“My discharge was inequitable because I was AWOL. Due to depression and could not adapt to military life.”

Additional issues submitted by Applicant’s counsel/representative (Disabled American Veterans):

 “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 Conditions discharge (OTH) to that of a General Under Honorable Conditions discharge.

The FSM served on active service from July 25, 2001 to October 20, 2004 at which time he was discharged in lieu of trial by Court Martial.

The FSM contends the current discharge is improper because he was suffering from bouts of Depression, which impaired his judgment.

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 D, Sect. 407, part 3.

In continuance, the FSM and his father both attest in writing that there have been psychological issues, with the father only noting those after the FSM’s separation from military service.

A review of the packet does not contain any post service treatment records to verify the diagnosis of depression, which would be incumbent upon the FSM to submit in support of his own appeal. Additionally, the Board’s packet contains only the entry exam, with none of the service medical records on file for review.

As the representative, we ask that attempts be made to secure the service medical records and that notice be sent to the FSM in an attempt to secure any private treatment records, so that a fair and impartial review.
We believe that consideration can be given to equitable relief, once the medical records are reviewed and establish the presence of a physiological disorder as this is a matter that could involve 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 5420.174D.

If a psychiatric condition was shown in service and proper evaluations were not completed then there is a probative error as this is contradictory to Navy regulations.

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

(signed)
K_ L. G_
National Service Officer”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Letter from Applicant’s father
Letter from Applicant to Officer in Charge USS VICKSBURG , dtd November 1, 2004
 Military medical records (13 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20010117 – 20010724               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20010725             Date of Discharge: 20041020

 Length of Service (years, months, days):

          Active: 03 02 2 6 (Does not exclude lost time.)
          Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 48 7
         Confinement:              N one
Age at Entry: 1 9

Years Contracted: 4

Education Level: GED                        AFQT: 48
Highest Rate: ENFA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NA*                  Behavior: NA*    OTA: NA*

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal.
* Not Available


Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/ IN LIEU OF TRIAL BY COURT MARTIAL, authority: MILPERSMAN, Article 1910-106 (formerly 3630650).

Chronological Listing of Significant Service Events :

020206:  OIC NJP for violation of UCMJ, Article 92: Drinking alcoholic beverages under age 21.
 Award: Forfeiture of $289.00 for 1 month, restriction and extra duty for 7 days. No indication of appeal in the record .

020802:  CO’s NJP for violation of UCMJ, Article 92: Failure to obey a lawful order.
 Violation of UCMJ, Article 107: False official statement.
Violation of UCMJ, Article 134: Disorder ly conduct.
         Award: Restriction and extra duty for 30 days, reduction in rate (suspended for 6 months). No indication of appeal in the record.

 020802:  Retention Warning: Advised of deficienc ies in performance and/or conduct (VUCMJ Article 92 (failure to obey lawful order), 107 (false official statement) and 134 (disorderly conduct) ). N otified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
021012:  CO’s NJP for violation of UCMJ, Article 86: unauthorized absence on 020927.
Award: Forfeiture $600.00 per month for 2 months (suspended for 3 months), restriction and extra duties for 30 days. No indication of appeal in the record. [Extracted from NAVPERS 1070/604, Awards Listing , and NAVPERS 1070/613, Administrative Remarks, dtd 011120 (sic) ].

021012:  Retention Warning: Advised of deficienc ies in performance and/or conduct (CO’s NJP of 0210 1 2 for UCMJ Article 86 (absence without leave)) . N otified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
030109:  CO’s NJP (NFI).
 [Extracted from NAVPERS 1070/604, Awards Listing].

030213:  Applicant to unauthorized absence at 0700 .
030618:  CO’s NJP for violation of UCMJ, Article 85: Desertion.
 Award: Forfeiture of $500.00 per month for 2 months, restriction for 60 days. No indication of appeal in the record.
030618:  EAOS adjusted from 24 July 2005 to 13 November 2005 due to a period of absent without leave (AWOL).
030904:  Applicant to unauthorized absence at 0700.
030907:  Applicant fr om unauthorized absence at 2300 (4 days/surrendered).
030918:  CO’s NJP (NFI).
 [Extracted from NAVPERS 1070/604, Awards Listing and NAVPERS 1070/613, Administrative Counseling/Warning, dtd 030918 ].

03091 8:  Retention Warning: Advised of deficiencies in performance and/or conduct (CO’s NJP of 030918 for UCMJ Article 86 (absent from unit)). Notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
041019:  Applicant submits voluntary request for an administrative discharge in lieu of a trial by court-martial. The Applicant acknowledges having been afforded an opportunity to consult with counsel and waive s right to consult with counsel . The Applicant admits guilt to Violation of the UCMJ, Article 86. The Applicant acknowledges his unde rst anding 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 in any branch of the Armed Forces, or the character of discharge received therefrom , may have a bearing . The Applicant did not desire to submit a sworn/unsworn statement.

041019:  The Commanding Officer, Transient Personnel Unit, Jacksonville, FL , approve s Applicant’s request for an administrative discharge in lieu of a trial by court-martial, and requests Officer in Charge, Personnel Support Detachment, Jacksonville process and execute an administrative discharge under Other Than Honorable Conditions in lieu of trial by court-martial.

Service Record contains a partial Administrative Discharge package.
Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20041020 in lieu of a trial by court-martial (A and B) with a service characterization of under other than honorable conditions. After a thorough review of the 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).
In the Applicant’s issue, the Board found no indication from the service record and documentation provided by the Applicant that he was denied proper medical care for any medical issues he may have had while on active duty. On 20041019 the Applicant requested discharge for the good of the service to escape trial by court-martial. In the request the Applicant noted that he fully understood the elements of the offense(s) for which he was charged and that he was guilty of the offense of violation Article 86 of the UCMJ. He further certified a complete understanding of the negative consequences of his actions and that characterization of service could be under other than honorable conditions. While he may feel that his medical condition and perceived lack of treatment 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. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

For the Applicant’s edification, DoD disability regulations do not preclude a disciplinary separation. SECNAVINST 1850.4E stipulates 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.

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 additional evidence related to this 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), re-issued October 2002, effective 22 Aug 2002 until 30 May 2005, 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 5420.174D 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, Para 211, Regularity of Government Affairs .


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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