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NAVY | DRB | 2006_Navy | ND0601036
Original file (ND0601036.rtf) Auto-classification: Denied

ex-MSSR, USN
ND06-01036

 Current Discharge and Applicant’s Request :

Application Received:                               20 0608 02
Narrative Reason for Separation:                          
Character of Service:                               
Discharge Authority :                                MILPERSMAN 3640420
Last Duty Assignment/ Command at Discharge:       NAVAL STATION CHARLESTON SC

Applicant’s Request:
          Narrative Reason change to:                N/a
         Characterization chang e to:               
         Review Requested :                          
Representation:                                             


Decision:

Date of Decision:                                             20 070709
The Discharge shall :                     
                                                     
The Board found that clemency was:               
Vot e (characterization/reason)                      /
Location of Board:                                  Washington D.C.
Complete Service Record:                                   
Complete Medical Record:                          
Complete Discharge Package:                       


Applicant’s Issues as Summarized by the Board:
1. Equity: Court Martial unfair.
2. Equity: Not competent at time of discharge/mental condition not treated
3. Equity: Should have received medical discharge.



Summary of Service :

Prior Service:
 Inactive: USNR (DEP)                                19890130 - 19890214
Active: NONE
Period of Service Under Review :
Date of Enlistment:                                 19890215
Years Contracted :                                   ;      
Date of Discharge:                                  19920731
Length of Service:                                  03 Yrs 05 Mos 17 Days Does not exclude lost time, if any.
Time Lost During This Period:                     
Days Unauthorized Absence:                         NONE
Days Confinement:                                   122

Education Level:                                   
Age at this Enlistment:                                    
AFQT:                                                 40/48
Highest Rate/Rank:                                   MSSA

Performance Evaluation Averages (number of marks):
 Performance :                                         2.9 (3)
Behavior :                                            1.9 (3)
OTA :                                                   2.9
Extracted from:
Applicant’s Supporting Documents Other:      

Awards and Decorations (as listed on the DD Form 214):
NONE



Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

19900518 :        NJP for violation(s) of UCMJ:
         Article 92 : Failure to obey an order or regulation.
         Award: Restriction and extra duty for 45 days, oral reprimand.
         No indication of appeal in the record.

 19900521:        Retention Warning: Advised of deficiency ( Failure to obey orders of superiors, failure to properly wear uniform, wearing inappropriate civilian attire. ), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
19900622 :        NJP for violation(s) of UCMJ:
         Article 86: Unauthorized absence from 0058-0213, 19900607.
         Award: Correctional custody for 30 days.
         No indication of appeal in the record.
19900717:        NJP Rehearing for violation(s) of UCMJ:
         Article 86: Unauthorized absence from 0058-0213, 19900607.
         Award: Correctional custody for 30 days, credit for time served.

 19990717:        Retention Warning: Advised of deficiency ( Failure to obey orders, insubordinate conduct, wearing inappropriate civilian attire, unauthorized absence. ), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
19900731:        Appeal letter. Rehearing dated 19900717.

 19901005 :        NJP for violation(s) of UCMJ:
         Article 86 (2 specs):
         Specification 1: On or about 2140, 19900908 without authority, go from appointed place of duty.
         Specification 2: On or about 0500 , 1 9900909 without authority, fail to go to appointed place of duty.
         Award: Forfeiture of $200 for 2 months, restriction and extra duty for 10 days, reduction to E-1.
         No indication of appeal in the record.

 19910111:        Special Court-Martial.
         Charge: Violation of the UCMJ, Article 107 , 134 .
         Specification: Falsely signing an official record with intent to deceive and wrongful possession of a false U. S. Navy identification card.
         Finding: To Charge and the specification thereunder, guilty.
          Sentence: Forfeiture of $400.00 for 3 months, confinement for 3 months.
         CA action 19910208: Sentence approved and ordered executed. However, the execution of that part of the sentence to confinement in excess of 60 days is suspended for a period of 12 months from the dated of trial.

 19910111:        Applicant to confinement.

19910227:        Applicant from confinement and restored to full duty.

19910324:        Applicant on unauthorized absence 0700-1051.

19910330:        Applicant on unauthorized absence 0700-0928.

 19910523:        Special Court-Martial.
         Charge I: Violation of the UCMJ, Article 86 (2 specifications) .
         Specification 1: Failure to go to appointed place of duty on 0700, 19910324. Plea: Guilty. Finding: Guilty.
          Specification 2: Failure to go to appointed place of duty on 0700, 19910330. Plea: Not Guilty. Finding: Not Guilty.
          Charge II: Violation of the UCMJ, Article 121:
         Specification: Larceny of 3 cassette tapes, of a value of $22.50, the property of the Navy Exchange on or about 19910320. Plea: Not Guilty. Finding: Guilty.
         Sentence: Forfeiture of $482 for 6 months, confinement for 90 days, bad conduct discharge.
         CA action 19910712: Sentence approved and ordered executed, except for bad conduct discharge .
         SA: see SSPCMO.

19910523:        Applicant to confinement.

19910804:        Applicant from confinement.


Medical Record Entries Related to Characterization of Service or Narrative Reason for Separation

1990509:         Medical Consult request. 21 year old with recurrent problems with discipline, awaiting captains mast. Recently in brig. Having problems with handling stress – frequent fights. Please eval uate and recommend treatment, disposition.

 19900601:        Patient complains of sleepiness past 6 weeks along with dull headache. Has been on restriction for 2 weeks now and has six weeks to go. Works 12 hours then to restricted barracks.

19901113:        Applicant examined and determined to be qualified for discharge.
19901115:        Patient Seen today for psych eval uation . Denies suicidal ideation, plan. No history of suicidal attempts. Patient very angry at former acquaintance’s theft of his car, money, other valuables however denies homicidal intent or violent intent. Release from OB.

 19901210:        Car accident Sat, Dec 8. Complains of headache, legs ache, back ache. MVA 2 days ago, head ache. Head hit steering wheel. No. s.b. Patient complains of pain forehead, mild LBP and bilateral knee pain where hit dash. HEENT---- mild edema to mid forehead, neck supple. ------- mild para lumber tenderness, spine nj knees – mild tenderness ____.
         A: Forehead contusion, knee contusion, minor back strain
         P: Offered motrin, refused.
19910408:        Patient has been wearing custom arch supports which initially relieved arch pain but now has pain over lat forefoot due to shift in pressure right foot. Patient awaiting admin sep – possibly to come in next few weeks. Exam both f e et marked planus arches. Mild tenderness over lat head 5 th MT no deformity.
         A: Res Planus with chronic pain due to lateral foot pain --- to shoes.
         P: sneaker chit for 1 month. If admin sep doesn’t take place consider med board.

19910509:        21 year old male needs gym shoe cit and a consult for stress. Currently awaiting med board for bilat pes planus with 2 chronic foot pain not relieved by arch supports. Will renew sneaker chit for 1 month. Has appoint ment 10 May 91 for review with Dr. M_ re stress management.


Elements of Discharge: [BCD]

 Record of Trial Complete:                                  
Date Charges Preferred:                             19910409
Date Charges Referred to Special Court-Martial:  19910409
Trial Date:                                          199 910523
Applicant requested BCD:                                   
Length of BCD S uspension:                          
Date Applicant to Confinement:                     19910523
Date Applicant from Confinement:                           19910804
Date Applicant to Appellate Leave:                         19910804
NC&PB Action and Date:                              Clemency not granted; restoration denied on 199 2 0102
NMCCA Action and Date:                              Affirmed findings and sentence on 19911210
USCAAF Action and Date:                            NOT APPLICABLE
Date Appellate Review Complete:                    19920805
Date of SSPCMO ordering BCD be executed :         19920731
Date Applicant Discharged:                         19920731




Additional Information Considered by Board

 Type of d ocumentation submitted by t he Applicant and considered by the Board
        Document Type                                        #Pages
 Related to Period of Service Under Review :
          Service/Medical Record :                              8
         Other Period of Service:                                    0
Related to Post-Service Period:
          Community Service :                                   0
         Education :                                           0
         Employment :                                          0
         Health /Medical :                                       0
         Character Statements:                               0
         Criminal Records Checks:                                    0
         Additional Statements from Applicant:             2
Other Documentation      (Describe Below)                 0

Total Number of Pages:                              10

D escription of Other Documentation:
     


Applicant’s Issues as Summarized by the Board:
1 . Equity: Court Martial unfair.
2. Equity: Not competent at time of discharge/mental condition not treated
 3. Equity: Should have received medical discharge .
The Applicant disputes the findings and punishment received at his court martial and requests an upgrade on that basis. In response to the Applicant’s issue, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency. The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. After a thorough review of the Applicant’s record, and issues submitted, the Board determined that clemency was not warranted and that the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed. Relief denied.
The Applicant argues that his discharge should be upgraded because at the time of his discharge he suffered from a mental condition and was not competent to stand trial. 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 Applicant’s statements alone do not overcome the government’s presumption of regularity. There is no evidence in the record, nor has the Applicant produced any evidence, to support his contention that he was incompetent to stand trial. By contrast, the applicant was referred for a psychiatric evaluation on 19900509 because he was complaining of stress. He received that evaluation on 19901115 and no mental health condition was found. In addition the Applicant was examined on 19901113 and determined to be fit for separation. 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.
Issue 3 is one which cannot form the basis of relief for the Applicant. The Applicant is directed to the Addendum regarding Medical Conditions and Misconduct .

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.

 The following is provided for the edification of the Applicant. The NDRB has no authority to provided additional review of this case since Applicant’s discharge occurred more than 15 years ago. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of Naval service, if he desires further review of his case.



Pertinent Regulation/Law

 A . Naval Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 04 Mar 93, Article 3640420, DISCHARGE OF ENLISTED PERSONNEL ADJUDGED BY SENTENCE OF COURTMARTIAL.

 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 UCMJ Article 92 (failure to obey an order), 121 (larceny), and 107 (false official statement).


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, provi ded 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 grante d 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
                                    Washington Navy Yard DC 20374-5023

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