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NAVY | DRB | 2007_Navy | ND0700491

Original file (ND0700491.rtf) Auto-classification: Denied

ex-LT, USNR
ND07-00491

Current Discharge and Applicant’s Request

Application Received: 20070307 Characterization Received:

Narrative Reason: MISCONDUCT Authority: BUPERS ORDER 0605 OF 05MAR01

Applicant’s Request:      Characterization change to:
                           Narrative Reason chang e : MEDICAL RETIREMENT

Applicant’s Issues:       1. VA Benefits and Employment .
                           2. Medical disabilities acquired while on active duty.
                           3 . Expunge NJP from the record – Actions were the result of Bipolar disorder which was
                           misdiagnosed as depression.


Decision

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

Date: 20 071101                                        Location: Washington D.C.

Discussion

Issue s 1 and 2 : either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum regarding .

Issue 3 ( ): The Applicant contends that he r actions were the result of her bipolar disorder which was misdiagnosed as depression. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge. In reviewing discharges, the Board presumes regularity in the conduct of government affairs unless there is substantial credible evidence to rebut the presumption. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence. Specifically with regard to the Applicant’s issue of misdiagnosed bipolar disorder there is no evidence in the record, nor has the Applicant produced any evidence to support her contention of bipolar prior to, during or after her period of service. The record however, does fully document the Applicant’s NJP and discharge process as well as her qualified resignation request which essentially asks for a general characterization of service. N othing indicates that the Applicant’s discharge was in any way inequitable. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considers the discharge proper and equitable.

With regard to the Applicant’s request to have her narrative reason for discharge changed , t he NDRB will change the reason for discharge if such a change is warranted. T he Applicant does not deny her fraternization , nor was she medically retired. The Assistant Secretary of the Navy for Manpower and Reserve affairs accepted the Applicant's qualified resignation letter and directed Block 28, Narrative Reason for Separation, contain the phrase “MISCONDUCT”. No other n arrative reason for s eparation could more clearly describe why the Applicant was discharged. To change the n arrative r eason s eparation would be inappropriate.

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence ( to include evi dence submitted by the Applicant) to rebut the presumption . After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, m edical and s ervice r ecord e ntries, d ischarge p rocess and evidence submitted by the Applicant, the Board found that

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative errors on the original DD Form 214 :

         “ SECNAVINST 1920.6B ”
         “ 1999 MAY 25 ”
         “ 05 10 07 ”
         “ 00 10 27 ”

The NDRB will recommend to the C ommander, Navy Personnel Command, that the DD 214 be corrected as appropriate.

Summary of Service

Prior Service:
Inactive: US N R    19980616 - 19981016
                  19981031 - 1999052 4 Discharged to Enter AD
Active:          19981017 - 199810 30 ADT

Period of Service Under Review:
Date of Commission : 199 9 0525      Years Contracted : INDEF          Date of Discharge: 20050331
Length of Service : 5 Yrs 10 Mths 7 D ys                               Lost Time :
Education Level: 16       Age at Commission : 37     AFQT: NOT FOUND IN RECORD         Highest Rank /Rate : LT
Evaluation marks (# of occasions):                Performance: 4.2 ( 10 )              Behavior: 2.9 ( 10 )
Awards and Decorations ( per DD 214): MERITORIOUS UNIT COMMENDATION, NATIONAL DEFENSE SERVICE MEDAL, OVERSEAS SERVICE RIBBON, NAVY PISTOL MARKSMANSHIP RIBBON, GLOBAL WAR ON TERRORISM SERVICE MEDAL.

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

19980616:        Applicant commissioned as an Ensign.

19981018 :        Applicant promoted to Lieutenant Junior Grade.

19990803:        Applicant reports to Camp Lejeune Naval Hospital.

20000601 :        Applicant promoted to Lieutenant.

20030714:        Applicant transfers to Naval Hospital Sigonella, Italy.

20040901 :        NJP - Viol UCMJ Art. 134 (f raternization , 2 spec s and a dultery 1 spec) .
         Awarded – p unitive l etter of r eprimand.

20040917:        Applicant issued p unitive l etter of r eprimand by Commanding Officer of US Naval Hospital Sigonella .

20041014:        Applicant submitted a qualifie d resignation which acknowledged that her characterization of service c ould be characterized as General (Under Honorable Conditions).

20041018 :        US. Naval Hospital, Sigonella, submitted r eport of nonjudical punishment to Co mmander, Naval Personnel , via Commander, Navy Region Europe . The CO stated that the Applicant had submitted a resignation request and r ecommended that the Applicant’s request be approved.

20041019:        Applicant appealed NJP and p unitive l etter of r eprimand.

20041130:        Navy Region Europe forwarded r eport of nonjudicial punishment to C hief of Naval Personnel recommending approval of the Applicant ’s resignation request. In the event that the Applicant ’s resignation dis approved , recommended that the Applicant for retention.

20041130:        Navy Region Europe approved Applicant’s a ppeal in part. Specification 1 was dismissed . S pecifications 2 and 3 and punitive l etter of r eprimand upheld.

20050216:        Commander, Naval Personnel Command, recommended to the Assistant Secretary of the Navy (Manpower and Reserve Affairs) that the with a characterization of service as General (Under Honorable Conditions).

20050218:        Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved the Applicant’s discharge by reason of Misconduct, with characterization of service as General (Under Honorable Conditions).

20050331:        Applicant discharged this date.

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:      Service and/or Medical Record:          Other Records:

Related to Post-Service Period:
         Employment:                        Finances:                          Education:
         Health/Medical Records:                   Substance Abuse:                           Criminal Records:
         Family/Personal Status:                   Community Service:                References:

Additional Statements From Applicant:    From Representative:
Other Documentation (Describe)

Pertinent Regulation/Law

A. Secretary of the Navy Instruction 1920.6B (ADMINISTRATIVE SEPARATION OF OFFICERS), effective 13 December 1999 until 14 December 2005 establishes policies, standards and procedures for the administrative separation of Navy and Marine Corps officers from the naval service in accordance with Title 10, United States Code and DoD Directive 1332.30 of 14 March 1997.

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 134 .

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 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 : 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.

Employmen t / 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 | ND0700491

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