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Decision Text

NAVY | DRB | 2007_Navy | ND0700054
Original file (ND0700054.rtf) Auto-classification: Denied
ex-BTFN, USN
ND07-00054
Current Discharge and Applicant’s Request:

 Application Received:                               20 061012
         Characterization of Service:              UNDER OTHER THAN HONORABLE
         Reason for Discharge :                      - SERIOUS
         Discharge Authority :                       MILPERSMAN 3630600
         Duty Assignment/ Command at Discharge:    USS MAUNA KEA (AE 22)

Applicant’s Request:    
         Characterization change to:              
         Narrative Reason change to:              
         Review Requested:                         
         Representation:                             
         Issues (as summarized by NDRB):           1. Honorable service
                                                      2. Personal problems (divorce, ill daughter, alcohol, and depression)
                                                      3. Post Service
        

Decision:

 By a vote of the Characterization shall .    
By a vote of the Reason for Discharge shall - .
Date of Decision:                                            20 070823
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:        


Discussion

 Decisional Issues:

Issue 1 ( ): The Applicant contends that he has eight years of otherwise honorable service. Despite a servicemember’s prior record of ser vice , certain serious offenses warrant separation from the n aval service in order to maintain proper order and discipline. The Applicant ’s summary of service (during the enlistment in question) clearly documents the Applicant ’ s misconduct resulting in nonjudicial punishment for violations of UCMJ Article s 95 (resisting apprehension), 108 (damaging or losing military property), 128 (assault ) , and 134 ( disorderly conduct ). Violations of Articles 95 and 128 constitute the “commission of a serious offense”, which forms the basis for discharge in this case. V iolations of UCMJ Article s 95 and 128 carry a penalty of a bad conduct dishonorable and imprisonment for each specification if adjudicated by a court martial. The Applicant’s conduct, which forms the primary basis for determining the character ization of his service, reflects the Applicant’s willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade in the characterization of his service.

Issue 2 ( ): The Applicant contends that his discharge was inequitable because of his personal issues (divorce, ill daughter, alcohol, and depression). The Board reviews the propriety and equity of each Applicant’s discharge individually. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with the naval service’s standards of discipline . N othing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy. An under other than honorable conditions characterization of service is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. The record supported the misconduct by the commission of a serious offense for which the Applicant was administratively discharged. T hat se paration was appropriate and an under other than honorable conditions characterization of service was warranted . T he Board found the Applicant’s discharge proper and equitable.

Issue 3 (Equity): The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that 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. The Applicant provided only his statement as documentation of his post-service accomplishments. The Applicant's efforts need to be more encompassing than those provided. For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, evidence of drug free existence, and certification of non-involvement with civil authorities. The Board determined that the documentation provided by the Applicant did not mitigate the misconduct which resulted in his administrative separation and the characterization of his service .


Summary of Service:

 Prior Service:
 Inactive: USNR (DEP)                                19860122 - 19860407
Active:                                              19860408 - 19900406 HON
Inactive: USNR                                       19900407 - 19910115 HON
Period of Service Under Review :
Date of Enlistment:                                 199 10116
Years Contracted :                                  
Date of Discharge:                                  19941220
Length of Service
          Active:                                      03 Yrs 11 Mths 05 D ys ( d oes not exclude lost time)
          Time Lost During This Period:            

Education Level:                                   
Age at this Enlistment:                                    
AFQT:                                                 59
Highest Rate/Rank:                                   BT2

Performance Evaluation Averages (number of marks):
                                                       Performance : 3.4 Behavior : 3.4 OTA : 3.4 0 (5)

Awards and Decorations (as listed on the DD Form 214): NATIONAL DEFENSE SERVICE MEDAL, ARMED FORCES EXPEDITIONARY MEDAL, SEA SERVICE DEPLOYMENT (2 ND AWARD), BATTLE "E" RIBBON, SOUTHWEST ASIA SERVICE MEDAL (W/BRONZE STAR)


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

19910116:        Reenlisted this date for a term of 5 years.

1991091 6 :        Naval Hospital, Oakland, CA. Medical Center: Applicant had fight with wife, used broken glass to cut neck, claims he is not suicidal now, ETOH use, stressful work.
         Diagnosis:
         AXIS I: Marital problems with violence ETOH abuse, R/O dependence.
         AXIS II: Personality disorder borderline.
         AXIS III: Self inflicted laceration, ETOH related.

19940616:        Mental Health Clinic, Naval Hospital Oakland Ca, Applicant blood alcohol 0.292 following apprehension.

19940624:        Applicant diagnosed to be alcohol dependent and screened for ARC Level III.

19940712 :        NJP for violations of UCMJ:
         Article 95: Resisting apprehension.
         Article 108: Damaging destroying or losing military property.
         Article 128: A ssault upon a person in the execution of law enforcement duties.
         Article 134: Disorder ly conduct, drunkenness.
         Award: Forfeiture of $ 3 00.00 /mo for 2 month s (s uspended for 6 months ), restriction and extra duty for 45 days, reduction to E- 4 (suspended for 6 months) .
        
1994 0713 :        Retention Warning: Advised of deficiency (Violation UCMJ Article 95, resisting apprehension, Article 108, damaging destroying or losing military property, Article 128, assault upon a person in the execution of law enforcement duties, Article 134, disorder ly conduct, drunkenness), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
19941014:        Naval Medical Center, San Diego Ca, Applicant completed the six week Level III Alcohol Rehabilitation Program.
19941024:        Medical Department USS MAUNA KEA (AE-22): Applicant inflicted wound to neck, made suicide statement. Strong odor of ETOH.


Elements of Discharge: [INVOLUNTARY]

 Date Notified :                                        19941117
Reason for Discharge     -
        
         -
Least Favorable Characterization Authorized :     UNDER OTHER THAN HONORABLE

Date Applicant R esponded to N otification:                 19941117
Rights E lected at N otification :
Consult with Counsel                      
Obtain Copies of Documents                
Submit Statement(s) (date)                          ELECTED
Administrative Board                      

Commanding Officer R ecommendation (date):        ( 19941129 )
Separation Authority (date):      BUPERS WASHINGTON DC ( 19941208 )
         Reason for discharge directed :             -
         Characterization directed:                        
Date Applicant Discharged:                         19941220


Additional Documents Submitted by Applicant and Considered By Board
Total Number of Pages:                               13

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)                  


Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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 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 95 (resistin g apprehension), 128 (assault) .



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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