Author: CAP
Last saved by: janet.goode
Company: NCPB

Docket No. ND08-00149

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

ex-AN, USN

1.  In response to your letter dated 10 September 2008, the NDRB accepted your request for reconsideration of your case.  The following additional information is provided to specifically address your concerns and for clarification of issues discussed in the decisional document you previously received:

While serving on the USS GEORGE WASHINGTON (CVN 73), and prior to your medical issues, you were found guilty at a Summary Court-Martial held 25 November 1998 of  violating of the Uniform Code of Military Justice (UCMJ):  Article 86 (Unauthorized Absence (UA)), on 3 specifications.    Specifically, you were in an UA status for a total of 50 days on 3 occasions: 7 August 1998 – 10 August 1998; 14 August 1998 – 21 August 1998; and 22 September 1998 – 29 October 1998.  The punishment awarded at the Special Court Marital was 30 days confinement.  

On 18 March 1999, you were again found guilty at a Non-Judicial Punishment hearing for Violation of the UCMJ:  Article 86 (UA, failure to report), on 2 specifications.  Specifically, you were absent form your appointed place of duty from 0615-0635, 25 February 1999 and from 0615-0800, 4 March 1999.  The punishment awarded this time was restriction, extra duty for 10 days and forfeiture of $100 pay for one month.  These offenses met the criteria for administrative separation processing for misconduct due to the commission of a serious offense; however, you were not processed for separation at that time as you began nearly a year of required treatment for medical problems which then surfaced.  When the medical treatment was completed, the command then began the administrative separation discharge process based on your misconduct and you were subsequently discharged from the Navy for misconduct based on the adjudicated periods of UA as documented in your service record.

2.  A complete review of your service and medical records was again conducted to address your specific concern regarding the period of time between your misconduct and the time you were discharged.  Your initial misconduct was immediately addressed through both the Summary Court-Martial and the Non-Judicial Punishment proceedings that were held against you for your actions of UA.  After your last Non-Judicial Punishment the record indicates you then started medical treatment for issues that surfaced.  The Navy is charged with treating, or attempting to treat, each service member for medical alignments and ensuring they are discharged in the best health possible based on their particular medical situation.  The record indicates you were seen over almost the course of a year for various issues the most serious which appeared to be knee pain.  After treatment, therapy, several reviews by various boards and being assigned to limited duty you condition was determined not to be a physical disability and you were found fit for full duty and recommended for administrative separation.  The following date-lines the medical issues and the administrative separation process found in your records:

     - 02/25/99 – Sick call for eye follow-up and knee pain.

     - 03/9/99 – Sick call for eye injury and Patella-Femoral Syndrome (PFS).

     - 03/16/99 – Sick call for knee pain follow-up.

     - 03/25/99 – Sick call for left knee pain – PFS.

     - 04/07/99 – Sick call for knee pain follow-up.

 -04/30/99 – Sick call for knee pain.  Doctor recommends considering Limited Duty versus Physical Evaluation Board.

     - 05/04/99 – Consult for Physical Therapy.

     - 05/17/99 – Knee pain complaint.

     - 06/08/99 – Follow-up on knee pain.  Recommend evaluation for Limited Duty.  Doctor recommended six months                 
                  Limited Duty.

      - 06/25/99 – Knee pain complaint.

      - 6/26/99 - Follow-up on knee pain complaint.

      - 07/22/99 – Officially placed on Abbreviated Limited Duty Medical Board for six months, expiration date 22 January 
                          2000.
     
      - 10/15/99 – Follow-up for knee pain.

     - 11/19/99 – Follow-up bilat knee pain. Doctor determines that your condition not considered a Physical Disability –         
                         Final Disposition.

     - 11/29/99 – Released from Limited Duty, found fit for full duty.  Physician advises administrative separation for non-          
                         compatibility with military service; “Unsuitability.”
    
     - 01/12/00 – Administrative Separation Processing Notice – Administrative Board Procedure.  You were notified of the  
                         Board Process and the record clearly indicates:
		- The least favorable characterization of service possible as “Under Other than Honorable”.  
		- You waived your right to an Administrative Board thus reflecting your concurrence.

     - 01/21/00 – Competency for duty screen – Found fit for full duty.

     - 03/09/00 – Your administrative separation request sent to Special Court-Martial convening authority (Commander, Navy  
                          Region, Mid-Atlantic) for approval.

     - 03/30/00 – Administrative separation request approved.  The commanding officer has 30 days to give you the opportunity  
                          to complete transitional services.

     - 04/18/00 – Discharged from the naval service, characterization received was “General (Under Honorable Conditions)” due  
                          to misconduct based on the adjudicated charges of UA. 

3.  The Commanding Officer, Naval Air Station, Oceana Detachment, Norfolk, VA considered the recommendation from medical professionals who stated you were unsuitable for military service based on your condition, which is not considered a Physical Disability.  As a result when a service member is processed for administrative separation for any reason, they must be concurrently processed for all reasons existing at the time of the separation recommendation.  Furthermore, while you may feel you would have been in the Navy today if your medical condition did not exist, your previous misconduct clearly met criteria for administration separation in March 1999.  However, as stated above, the medical condition that you were experiencing prevented immediate separation action as medical assessment and treatment was required.  Had it not been for your medical situation, you more than likely would have been discharged from the Navy as early as March 1999 based on your repeated unauthorized absences and failure to report for duty on time.  There is no indication based on your previous performance and conduct that you would have been retained in the Navy.  

4.  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 careful 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 again determined that  the applicant’s discharge was proper and equitable.

						     President, Naval Discharge Review Board

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 to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  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 or is referred to a court martial 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 or for any basis wherein an Other Than Honorable Discharge is authorized, 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 other medical related reasons.  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 special 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.  The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

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
Washington Navy Yard DC  20374-5023