ex-FR, USN

Current Discharge and Applicant’s Request

Application Received: 20150126
Characterization of Service Received:  (per DD 214) UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge:  (per DD 214) MISCONDUCT 
Reenlistment Code:  RE-4
Authority for Discharge:  (per DD 214) MILPERSMAN 1910-142 [COMMISSION OF A SERIOUS OFFENSE]

Applicant’s Request:	Characterization change to:	GENERAL (UNDER HONORABLE CONDITIONS)
	Narrative Reason change to:	NONE REQUESTED

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	20000518 - 20001017  COG	Active:	NONE

Period of Service Under Review:

Date of Current Enlistment:  20001018	Age at Enlistment:  19
Period of Enlistment:  4 Years  NO Extension
Date of Discharge:  20011026	Highest Rank/Rate:  FA
Length of Service:  01 Year(s)   00  Month(s)   09 Day(s)
Education Level:  11	AFQT:  37
Evaluation Marks:	Performance:  1 (1)	Behavior:  1 (1)	OTA:  1.0

Awards and Decorations (per DD 214):	MUC

Periods of UA/CONF:  NONE

NJP:  3

- 20010524:	Article 112 (Drunk on duty)
	Awarded: RESTR Suspended:  NONE

- 20010720:	Article 91 (Insubordinate conduct toward WO, NCO or PO; O/A 20010704, SNM committed insubordinate behavior toward a Petty Officer by waving his hand in his direction while walking away from him.)
	Article 92 (Failure to obey order or regulation; O/A 20010704, SNM did not wear his restricted personnel badge.)
	Awarded: RESTR EPD FOP  Suspended:  FOP

- 20010917:	Article 92 (Failure to obey order or regulation)
	Article 128 (Assault)
	Awarded: RESTR EPD FOP  Suspended:  FOP

SCM:  NONE		SPCM:  NONE		CC:  NONE

Retention Warning Counseling:  1

- 20010524:	For deficiencies related to 20010524 NJP for Article 112 (Drunk on duty)

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:		Rehabilitation/Treatment:		Criminal Records:	
	Personal Documentation:		Community Service:		References:	
	Department of VA letter:		Other Documentation:	
		Additional Statements:
	From Applicant:		From/To Representation:		From/To Congress member:	

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 31, effective 25 January 2001 until 
21 August 2002, Article 1910-142, 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 IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications.

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, Article 92, Failure to obey order or regulation and Article 128, Assault.

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

Applicant’s Issues

1.	The Applicant contends that he refused to see a mental health doctor and refused mental treatment while in the Navy. 
2.    The Applicant contends that he was discharged from the Navy for a determination made by only one mental health provider.
3.    The Applicant contends that he had no high school education while in the Navy and education was a big factor in his discharge. 
4.	The Applicant contends that he was not given the option to go through a discharge board while being processed out of the Navy.
5.    The Applicant contends that his discharge was improper and that he was never court martialed or incarcerated.

Decision

Date:  20150402	DOCUMENTARY REVIEW	Location:  Washington D.C.	Representation:  NONE

By a vote of 5-0 the Characterization shall remain UNDER OTHER THAN HONORABLE CONDITIONS.
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT .

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 Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Board did complete a thorough review of the circumstances that led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included one NAVPERS 1070/613 (Page 13) warnings, three nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 112 (Drunk on duty), Article 91 (Insubordinate conduct toward WO, NCO or PO), Article 128 (Assault), and Article 92 (Failure to obey order or regulation, 2 specifications).  Based on the offenses committed by the Applicant, his command administratively processed him for separation.  When notified of administrative separation processing using the administrative board procedure, the Applicant waived his rights to consult with a qualified counsel, submit a written statement, and request an administrative board. 

Issues 1-2:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends that he refused to see a mental health doctor and refused mental treatment while in the Navy.  The Applicant also contends that he was discharged from the Navy for a determination made by only one mental health provider.  There is no documentation for a mental health disorder in the Applicant’s service record.  The separation physical dated 20 September 2001 is marked as normal under Psychiatric and personality deviations and the physician determined that the patient was qualified for separation.  On the patient’s medical history form completed that day, the Applicant had marked frequent trouble sleeping, depression or excessive worry, and nervous trouble of any sort as well as indicating that he had alcohol treatment.  Those symptoms were screened by physician before he cleared the Applicant for separation.  On the Applicant’s initial enlistment physical conducted on 27 May 1999, there were no mental health issues noted by either the Applicant or his physician.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  The NDRB did not find any reference to a mental health diagnosis in the Applicant’s service record, and the Applicant did not provide any documentary evidence of a medical diagnosis by competent medical authorities to support his claim.  Relief denied.

Issue 3:  (Decisional) (Propriety)  RELIEF NOT WARRANTED.  The Applicant contends that he had no high school education while in the Navy and education was a big factor in his discharge.  The Applicant entered into Naval service at age nineteen before completing high school.  On the Applicant’s DD FORM 1966/3 which was completed on 13 May 2000 for entry into the Navy, the Applicant’s mother signed a statement stating “Both the applicant and I have been urged by recruiting personnel to have the applicant stay in high school and graduate if possible prior to enlisting, but I have decided that it would be the best advantage of the applicant to enlist in the Naval service at this time.”  Lack of education may have impacted the Applicant’s performance in the classroom or while performing assigned duties, but it would not account for the Applicant’s disciplinary problems which led to three NJPs in a period of under five months.   While the Applicant may feel that youth and immaturity were underlying causes for his misconduct, the record clearly reflects willful misconduct and demonstrated that the Applicant was unfit for further service.  The evidence of record does not demonstrate the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The NDRB recognizes that serving in the military is challenging.  Most servicemembers, however, serve honorably and therefore earn their Honorable discharges.  In fairness to those Marines and Sailors who served honorably, Commanders and Separation Authorities are tasked to ensure that undeserving servicemembers receive no higher characterization than is due.  The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances.  Relief denied.

Issue 4:  (Decisional) (Propriety)  RELIEF NOT WARRANTED. The Applicant contends that he was not given the option to go through a discharge board while being processed out of the Navy.  On 18 September 2001 when notified of separation processing using the administrative board procedure, the Applicant waived his rights to consult with a qualified counsel, submit a written statement, and request an administrative board.  However, since the Applicant had completed less than six years of service, he was ineligible for an administrative board and should have been processed using the notification procedure.  The Applicant had the right to request a general court martial Convening Authority review and that option was incorrectly marked “N/A” on the separation notice.  Despite this error, the separation was properly reviewed and approved by the Convening Authority on 21 September 2001.  Relief denied.

Issue 5:   (Decisional) (Propriety)  RELIEF NOT WARRANTED.  The Applicant contends that his discharge was improper and that he was never court martialed or incarcerated.  The Applicant provided copies of his NGB Form 22 documenting his service in the Army National Guard of Texas from April 2005 to October 2008 and July 2008 to December 2013 as well as his GED test results dated 22 February 2007.  During the Applicant’s Naval service, there were three documented NJPs for serious offenses which usually result in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial.  The command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge.  An Under Other Than Honorable Conditions discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service.  The Applicant did not provide any documentary evidence or specifics to support his contention of impropriety or inequity, and the Board completed a thorough review of the circumstances that led to his discharge and the discharge process and found that the discharge met the pertinent standards of equity and propriety.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, and discharge process, the Board found the discharge was proper and equitable at the time of discharge.  Therefore, the awarded characterization of service shall remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain MISCONDUCT.  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his discharge.  The Applicant is directed to the Addendum for additional information.

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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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:  Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code.  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