ex-ABEAR, USN

Current Discharge and Applicant’s Request

Application Received: 20090909
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MILPERSMAN 

Applicant’s Request:	Characterization change to:	
	Narrative Reason change to:	

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	19990522 - 19991227  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  19991228	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20040507	Highest Rank/Rate:  ABE3
Length of Service:   Year(s)     Month(s)   10 Day(s)
Education Level:  	AFQT:  42
Evaluation Marks:	Performance:  3.0 (3)	Behavior:  3.0 (3)	OTA:  3.00

Awards and Decorations (per DD 214):	  

NJP:  

SCM:  

SPCM:  

- 20020711:	Article  (Absence without leave 20020124 – 20020303, 39 days, surrendered)
	Article  (Missing movement – through design on 20020222 ship’s movement)
	Article  (Wrongful use, possession, etc., of controlled substances – cocaine 20020415)
	Sentence:  45 DAYS (20020711 – 20020817, 38 days) 

CC:  

Retention Warning Counseling:  

Types of Documents Submitted/reviewed

Related to Military Service:	
                                         DD 214:		Service/Medical Record:		Other Records:	

Related to Post-Service Period:	
	Employment:		Finances:		Education/Training:	
	Health/Medical Records:		Substance Abuse:		Criminal Records:	
	Family/Personal Status:		Community Service:		References:	
              Additional Statements:
                             From Applicant:		From/To Representation:		From/To Congress member:	
                    Other Documentation:	

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

Applicant’s Issues

1.  In-service conduct and performance.
2.  Received awards and decorations.
3.  Post-service conduct warrants consideration.
4.  Youth and immaturity.
5.  Deprived background.
6.  Psychiatric problems.
7.  Bipolar disorder.
8.  Should have received a medical discharge.
9.  Hazed aboard ship.
10. Used drugs to self-medicate her pain of suffering.
11. Record of AWOL [absent without leave] indicates only minor or isolated offenses.

Decision

Date:  20101014		Location:  Washington D.C.	Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall   .

Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.  In reviewing discharges, the NDRB 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.  With respect to a discharge adjudged by a court-martial case, 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.   In response to the Applicant's clemency request, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts.  The Applicant's case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  The Applicant’s record of service included one special court-martial (SPCM) for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave more than 30 days, 39 days, surrendered), Article 87 (Missing ship’s movement through design), and Article 112a (Wrongful use of a controlled substance, cocaine, amount not found in record).  The Applicant did not require a preservice drug waiver to enlist.  At the SPCM, the Applicant pled and was found guilty of all charges and sentenced to 45 days confinement and a Bad Conduct discharge.

Issues 1-2, 11:  (Decisional) ()  .  The Applicant contends her in-service conduct and performance, including her receiving several awards and decorations, warrant consideration for an upgrade.  She also contends her record of AWOL indicates only minor or isolated offenses.  Certain serious offenses, even though isolated, warrant separation from the service to maintain proper order and discipline.  The Applicant committed three serious offenses in which her command decided to pursue a punitive discharge rather than the more lenient administrative discharge.  Based upon available records, the NDRB determined nothing indicates the Applicant’s discharge was in any way inconsistent with the standards of discipline in the U.S. Navy.  Clemency denied.

Issue 3:  (Decisional) ()  PARTIAL .  The Applicant contends her post-service conduct warrants consideration.  The NDRB considers outstanding post-service conduct 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.  The Applicant provided several letters of reference and documentation regarding her employment, finances, education and training, health and medical records, and criminal records.  After a careful review of the Applicant's post-service documentation and official service record, and taking into consideration the facts and circumstances unique to this case, the NDRB determined partial relief is warranted based on equitable grounds. The NDRB voted unanimously to upgrade the discharge characterization to Under Other Than Honorable Conditions, but not change the narrative reason for separation. An upgrade to Honorable, as requested, was not considered appropriate given the seriousness of the member’s misconduct.

Issue 4:  (Decisional) ()  .  The Applicant contends her youth and immaturity were mitigating factors in her misconduct.  The NDRB recognizes that many of our servicemembers are young at the time they enlist for service, but still manage to serve honorably.  While we understand some members may be less mature than others, the NDRB does not view a member’s claim of youth or immaturity to be a mitigating factor or a sufficient reason for misconduct.  

Issue 5:  (Decisional) ()  .  The Applicant contends her deprived background (father and mother abandoned the children when they were young, no stable childhood, moving from family to family) was a mitigating factor in her misconduct.  The NDRB recognizes that many of our servicemembers are raised in difficult scenarios and from various socioeconomic backgrounds at the time they enlist for service, but still manage to serve honorably.  The NDRB does not view a member’s claim of a difficult childhood (deprived background) to be a mitigating factor or a sufficient reason for misconduct.  

Issues 6-8, 10:  (Decisional) ()  PARTIAL .  The Applicant contends her psychiatric problems, including bipolar disorder, impaired her ability to perform and she should have received a medical discharge.  The Applicant also contends she used drugs to self-medicate her pain of suffering.  The NDRB noted throughout the Applicant’s career she had a history of suicidal ideations.  Per her Chronological Record of Medical Care dated 23 June 2000, the Applicant was diagnosed with adjustment disorder with narcissistic traits.  On 10 July 2000, she was diagnosed with adjustment disorder with depressed mood.  On 21 October 2000, she was diagnosed with adjustment disorder with depressed mood and poor impulse control.  On 22 October 2000, the ship’s psychologist diagnosed the Applicant with borderline personality disorder, but she was not recommended for separation.  Post-service, the Applicant provided documentation she was being treated for anxiety, depressive disorder not otherwise specified, and finally for bipolar disorder.  The NDRB found no evidence the Applicant was recommended for administrative separation by reason of convenience of the government – physical or mental conditions or personality disorder.  Even if she was recommended for administrative separation, her diagnoses do not amount to a disability.  Separation for these reasons would not be appropriate nor should it be pursued when separation is warranted on the basis of unsatisfactory performance or misconduct.  However, after a careful review of the Applicant's post-service medical documentation and official service record and taking into consideration the facts and circumstances unique to this case, the NDRB determined partial relief is warranted based on equitable grounds. The NDRB voted unanimously to upgrade the discharge characterization to Under Other Than Honorable Conditions, but not change the narrative reason for separation. An upgrade to Honorable, as requested, was not considered appropriate given the seriousness of the member’s misconduct.

Issue 9:  (Decisional) ()  .  The Applicant contends she was hazed aboard ship and reported it.  The Applicant stated she was not able to get a copy of the incident, and the NDRB found no documentation in her service records.  The Applicant’s statements alone, without sufficient documentary evidence, are not enough to form a basis of relief.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  and medical record entries, and discharge process, the NDRB found clemency was not warranted at the time of discharge.  However, based on equitable grounds, the NDRB determined partial clemency was warranted.  Therefore, the awarded characterization of service shall   and the narrative reason for separation shall remain .  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of  discharge.  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct.

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 8 September 2004, Article 5815-010, Executing a Dishonorable or Bad Conduct Discharge.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications.

C.  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. 

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe 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:  After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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.  There are veterans organizations such as the American Legion and the Disabled American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their 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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the NDRB’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 BCNR can make changes to reenlistment codes.  Additionally, the NDRB 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended 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 BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct:  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  Outstanding post-service conduct, 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, is considered during Board reviews.  Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle.   The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate  in-service misconduct was an aberration and not indicative of the member’s overall character.

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 NDRB 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