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NAVY | DRB | 2007_Navy | ND0701078
Original file (ND0701078.rtf) Auto-classification: Denied

ex-AOAR, USN
Current Discharge and Applicant’s Request
Application Received: 20070731
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3640420 (conviction by a special court martial)

Applicant’s Request:     Characterization change to:
                           Narrative Reason change to:

Summary of Service

Prior Service:
Period of Service Under Review:
 Date of Enlistment: 19880415      Period of enlistment : Years Active Mariner (36 mths AD, 36 mths SelRes, 24 mths IRR) Commenced Active Duty: 19980811   Length of Service: Yrs Mths 21 D ys     Date of Discharge: 19920805
Education Level:         Age at Enlistment:                AFQT: 53                   Highest Rank/Rate: AOAA
Evaluation marks (4.0 scale) : Performance: 2.5 ( 2 ) Behavior: 2.0 ( 2 ) OTA: 2.9     
Awards and Decorations (per DD 214):

Periods of UA/CONF: 19900410 – 19900411 (UA); 19900521 – 19900611 (UA); 19900828 – 19900829 (UA);
19901006 – 19901026 (UA); 19901030 – 19910107 (UA); 19910402 – 19910528 (UA);
19910529 – 19910724 (CONF)
NJPs:   
         19890227 : Art(s) 92 (Underage drinking) .
Awarded - CCU Susp – CCU Vacated CCU 19890320
          19890320 : Art(s) 92 (Underage drinking) .
Awarded - Susp -
19900818 : Art(s) 86 (UA) 12 Specifications,
91 (Insubordinate conduct) .
         Awarded - CCU Susp - (CCU suspended 19900828 due to Applicant UA, mitigated 19900829 to 30 days RESTR/EPD. Suspended FOP vacated 19900927.)
          19900927 : Art(s) 86 (19900828 - 19900829; 58 failures to go to appointed place) .
         Awarded - Susp -

SPCMs:  
         19910710 : Art(s) 86, 87 (Missing movement). Sentence - BCD; CONF 4 months, FOP $400 per month for 4 months.
(Convening Authority suspended confinement in excess of 75 days)

 Retention Warnings: .
          19890227 : For underage drinking .
         19890320 : For underage drinking .
         19900818 : For NJP of 19900818 .

 NDRB Documentary Review Conducted (date): NONE
Types of Documents Submitted

 Related to Military Service:      DD 214:          Service and/or Medical Record:            Other Records:

Related to Post-Service Period:  
         Employment:                        Finances:                          Education/Training:     
         Health/Medical Records:           Substance Abuse:                           Criminal Records:       
         Family/Personal Status:           Community Service:                References:              
        
Additional Statements From Applicant:             From Representation:              From Member of Congress:
Other Documentation (Describe)


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

Applicant’s Issues

 1. Clemency warranted due to mental health issues suffered while on active duty.

Decision

Date: 080508  PERSONAL APPEARANCE HEARING Location: Washington D.C         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall COURT-MARTIAL .
Discussion

Issue 1 ( ): The Applicant is seeking clemency due to his claim he was suffering from mental health issues while on active duty. He claims his mental health issues contributed to his misconduct.

During Board reviews the government is presumed to conduct its affairs with regularity unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant provided numerous documents concerning his childhood difficulties adjusting to socialization with his peers. However, none of these issues are discussed or mentioned during the recruitment phase of his indoctrination. A review of his military medical records do not indicate any mental health issues. The Applicant stated when asked about this he didn’t think it was an issue and being in the Navy would help him become a better person; therefore, there was no need to discuss this matter with the recruiter.

A review of the Applicant’s Report of Medical History (SF 93) dated 15 April 1988 reflects the Applicant annotated he was in excellent health and fails to disclose any mental health issues military medical doctors could have used to conduct more stringent evaluations to determine if the Applicant was truly a suitable candidate for Naval service. There is one reference to being allergic to Ritalin made on the SF 93. However, no further comments concerning this are found or reason for it being prescribed.

The Applicant presented his case to the Board and was well centered and focused while doing so. The Applicant admitted to the wrong doing which ended with his discharge. However, the Board members were not convinced the Applicant’s excessive UA issues or missing movement could be traced to mental health suffered while he was on active duty; no military medical documentation references mental health issues as justification for being UA or missing movement.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, and Medical Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, Article 3640420 effective period 19930626 until 20040125.
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 86 (more than 30 days), 87 and 92.








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, provided 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 granted 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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