Upgrade.Vet

NAVY | DRB | 2007_Navy | ND0700031

Original file (ND0700031.rtf) Auto-classification: Denied

ex-AA, USN
ND07-00031

Current Discharge and Applicant’s Request:

Application Received:                               20 0 6 1010
         Characterization of Service:              GENERAL
         Reason for Discharge :                      PATTERN OF MISCONDUCT
         Discharge Authority :                       SECNAVINST 1920.6B
         Duty Assignment/ Command at Discharge:    USS BONHOMME RICHARD (LHD 6)

Applicant’s Request:
         Characterization change to:
         Narrative Reason change to:
         Review Requested:
Representation:

Applicant’s i ssues:
1. Undiagnosed mental problems (schizophrenia) cause Applicant’s misconduct - Equity

Decision:

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

Date of Decision:                                            20 070816
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 Applicant argues that his misconduct was due to undiagnosed mental health problems while on active duty. While the NDRB does recognized the Applicant ’ s post service diagnosed personality disorder , that diagnosis does not sufficiently mitigated his misconduct to warrant an upgrade in his characterization of service. The mere presence of a personality disorder is not a bar to Naval Service. There is no evidence in the record to suggest that Applicant was not responsible for his misconduct or that he should not be held accountable for his actions. In the Applicant ’ s case, the Board could discern no impropriety or inequity in the Applicant ’ s discharge based merely on the fact that the Applicant was permitted to continue his service despite the presence of a diagnosed personality disorder. Therefore, the NDRB considered the Applicant ’ s discharge proper and equitable. Relief denied.

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)                                20031210 - 20040426
Active:

Period of Service Under Review :
Date of Enlistment:                                 20040427
Years Contracted :
Date of Discharge:                                  20051224
Length of Service
         Active:                                     01 Yrs 07 Mths 28 D ys ( d oes not exclude lost time)
         Inactive:                                            00 Yrs 00 Mths 00 D ys
         Time Lost During This Period:

Education Level:
Age at this Enlistment:
AFQT:                                                 99
Highest Rate/Rank:                                   AA

Performance Evaluation Averages (number of marks):
                                    Performance : 2.0 ( 1 ) Behavior : 3.0 ( 1 ) OTA : 2.00

Awards and Decorations (as listed on the DD Form 214): NATIONAL DEFENSE SERVICE MEDAL, GLOBAL WAR ON TERRORISM SERVICE MEDAL, GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL, SEA SERVICE DEPLOYMENT RIBBON

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

20041210:        Counseling: Advised of deficiencies in performance and conduct (Military bearing/character, initiative, responsibility, counseling), necessary corrective actions explained.

20050503:        Counseling: Advised of deficiencies in performance and conduct (Military bearing/character, initiative, responsibility.), necessary corrective actions explained.

20050517:        Counseling: Advised of deficiencies in performance and conduct (Military bearing/character, initiative, responsibility, teamwork.), necessary corrective actions explained.

20050922:        Counseling: Advised of deficiencies in performance and conduct (Responsibility and unauthorized absence.), necessary corrective actions explained.

20050923:        Counseling: Advised of deficiencies in performance and conduct (Responsibility and unauthorized absence.), necessary corrective actions explained.

20051003 :        NJP for violation(s) of UCMJ:
         Article 86 (2 specifications):
         Specification 1: On or about 20050912 go from his appointed place of duty.
         Specification 2: On or about 0600, 20050914, absence himself from his place of duty and did remain so absent until 0945, 20050914.
         Award: Forfeiture of $ 643 .00 for 2 months, restriction and extra duty for 30 days, reduction to E- 1 .
         No indication of appeal in the record. [Award extracted from Commanding Officer’s letter dated 20051216 and NAVPERS 1626/7, Report and Disposition of Offense(s).]

20051006:        Retention Warning: Advised of deficiency (CO’s NJP 20051003 for violation of the UCMJ, Article 86: Unauthorized absence and Article 92: Failure to obey other lawful order.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

20051011:        Counseling: Advised of deficiencies in performance and conduct (Unauthorized absence from the 1400 restricted muster and did not show until 1405.), necessary corrective actions explained.

20051024 :        NJP for violation(s) of UCMJ:
         Article 86 ( 4 specifications):
         Specification 1: On or about 1230, 20051010 absence himself from his place of duty and did remain so absent until 1232, 20051010, to wit: restricted man’s muster.
         Specification 2: On or about 1400, 20051011, absence himself from his place of duty and did remain so absent until 1405, 20051011, to wit: restricted man’s muster.
         Specification 3: On or about 1800, 20051011, go from his appointed place of duty, to wit: extra duties.
         Specification 4: On or about 1800, 20051013, go from his appointed place of duty, to wit: extra duties.
         Article 92 : On or about 20051010, fail to obey lawful order by wrongfully appearing unshaven prior to muster.
         Award: R estriction and extra duty for 30 days.
         No indication of appeal in the record.

20051108 :        NJP for violation(s) of UCMJ:
         Article 91 : On or about 2005110 4, assault OSC D_ by pushing him on the shoulders with his open palms..
         Award: R estriction and extra duty for 45 days .
         No indic ation of appeal in the record.

Elements of Discharge: [INVOLUNTARY]

Date Notified :                                        20051215
Reason for Discharge     -
Least Favorable Characterization Authorized :

Date Applicant R esponded to N otification:                 20051215
Rights E lected at N otification :
Consult with Counsel
Obtain Copies of Documents
Submit Statement(s) (date)                          20051215
Administrative Board
GCMCA Review

Commanding Officer R ecommendation (date):
Separation Authority (date):      COMMANDING OFFICER, USS BONHOMME RICHARD (LHD 6) ( 20061216 )
         Reason for discharge directed :             -
         Characterization directed:
Date Applicant Discharged:                         20051224

Additional Documents Submitted by Applicant and Considered By Board

Total Number of Pages:                               175

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)             E-mails (23 pages)

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until Present, Article 1910-140, SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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, Article 91 (Insubordinate conduct toward petty officer) , 92 (Failure to obey order, regulation) .

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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NAVY | DRB | 2007_Navy | ND0700031

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