Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: joyce.meeks
Company: NCPB

Docket No. ND07-00088

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

FOR
 ex-ETSN, USN
ND07-00088

Current Discharge and Applicant’s Request:

Application Received:  				20061030
	Characterization of Service:		
	Reason for Discharge:			 - 
	Discharge Authority:			MILPERSMAN 1910-140
	Duty Assignment/Command at Discharge:	USS JOHN C. STENNIS (CVN-74) AT SAN DIEGO, CA 

Applicant’s Request:	
	Characterization change to:		
	Narrative Reason change to: 		
	Review Requested:			
	Representation:				
	
Applicant’s Issues: 
1.  RE code change and reenlistment opportunity
2.  Inequitable discharge characterization due to mental illness/PTSD and otherwise good service record.

Decision:

By a vote of  the Characterization shall  .	
By a vote of  the Reason for Discharge shall   - .

Date of Decision:					20070823
Location of Board:				Washington D.C.
Complete Service Record:				
Complete Medical Record:			
Complete Discharge Package:			

Regarding propriety, the Board found the discharge:	
Regarding equity, the Board found the discharge:	

Issue 1: The Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding RE codes and other reenlistment issues.

Issue 2 (Equity):  The Applicant contends that her misconduct while in the Navy was due to a bipolar disorder and/or Post Traumatic Stress Disorder resulting from sexual trauma suffered in childhood.   The Applicant’s statement also indicates that she requested a General (Under Honorable Conditions) discharge from among several options offered to her by her former command.  An honorable discharge is appropriate when the quality of the member’s service has met the standards of accepted conduct and performance of duty for military personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  An under honorable conditions discharge is appropriate when the member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance outweigh positive aspects of the member’s military record.  The Applicant’s service was marred by a retention warning and three separate non-judicial punishment (Captains Mast) proceedings for multiple violations of Article 89 (Disrespect toward a superior commissioned officer), Article 91 (Insubordinate conduct toward a Petty Officer),  and Article 92 (Failure to obey a lawful order).   A violation of any of these Articles is considered a serious offense, for which a punitive (Bad Conduct) discharge is authorized if adjudged by a Special or General Court-Martial.   Therefore, an upgrade of characterization to honorable would be inappropriate in this case. 

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.

Summary of Service:

Prior Service:
Inactive: USNR (DEP)				19960930 - 19970203  
Active:   					

Period of Service Under Review:
Date of Enlistment:  				19970204
Years Contracted:  				; Extension:  
Date of Discharge:				19990708
Length of Service
	Active:					02  Yrs  05  Mths  05  Dys  (does not exclude lost time)
	Inactive:					NONE
	Time Lost During This Period:		  Days UA:    Days Confinement:  

Education Level:  				
Age at this Enlistment:  				
AFQT:  						67
Highest Rate/Rank:				ETSN

Performance Evaluation Averages (number of marks):
				Performance: N/A Behavior: N/A OTA: N/A

Awards and Decorations (as listed on the DD Form 214):  NAVY “E” RIBBON

Service Record Entries Related to Characterization of Service or Reason for Discharge

19970609:	NJP for violation(s) of UCMJ:
	Article 91: (2 specifications), Willful disobedience of a lawful order and disrespect toward a Petty Officer.
	Award:  Reduction in rate to paygrade E-1.
	No indication of appeal in the record.

19970609:	Retention Warning:  Advised of deficiency (CO’s NJP of 19970609 for violation of the UCMJ, Article 91-(2 specifications), willfully disobedience of a lawful order and disrespect toward a First Class Petty Officer), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

19990522:	NJP for violation(s) of UCMJ:
	Article 89: Disrespect toward a Commissioned Officer.
	Article 91: Disrespect to a Senior Chief Petty Officer.
	Article 92: (2 specifications), Disobey a lawful order from a Senior Chief Petty Officer, and disobey an order from a Commissioned Officer.
	Award:  Forfeiture of $250.00 for 1 month, restriction and extra duty for 30 days (5 days susp for 6 months).
	No indication of appeal in the record.

19990617:	NJP for violation(s) of UCMJ:
	Article 89: Disrespect toward a Commissioned Officer.
	Award:  Confinement for 3 days on bread/water.
	No indication of appeal in the record.

Elements of Discharge:  [INVOLUNTARY]

Date Notified:	NOT FOUND IN RECORD
Reason for Discharge	 - 
Least Favorable Characterization Authorized:	
Date Applicant Responded to Notification:	NOT FOUND IN RECORD
Rights Elected at Notification:
              Consult with Counsel	
              Obtain Copies of Documents	
              Submit Statement(s) (date)	
              Administrative Board	
              GCMCA Review	

Commanding Officer Recommendation (date):	
Separation Authority (date):	NOT FOUND IN RECORD
              Reason for discharge directed:	
              Characterization directed:	NOT FOUND IN RECORD
Date Applicant Discharged:	19990708

Additional Documents Submitted by Applicant and Considered By Board

Total Number of Pages:				13
       
Related to Period of Service Under Review:
	From Service and/or Medical Record:		Other Records:	

Related to Other Period(s) of Service:
	From Service and/or Medical Record:		Other Records:	
       
Related to Post-Service Period:
	Employment:					Finances:	
	Health/Medical Records:				Substance Abuse:	
	Family/Personal Status:				Education:	
 	Community Service Efforts:			References:	
	Criminal Records:			

Other:
	Additional Statements From Applicant:		From Representative:	
        	Other Documentation (Describe)		      

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 
12 Dec 97 until 29 March 2000, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B.  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.

C.  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, Articles 89, 91, and 92.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  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:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the 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.  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 Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’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 Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board 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 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.  Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or “PTSD.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  

Automatic Upgrades - 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 Naval service.  The NDRB is authorized 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 may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

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 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.  

Board Membership:  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