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NAVY | DRB | 2008_Navy | ND0800308
Original file (ND0800308.rtf) Auto-classification: Denied

ex-OSSR, USN
Current Discharge and Applicant’s Request
Application Received: 20071213
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3630600 (commission of a serious offense)

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

Summary of Service

Prior Service:
 Inactive: US N R (DEP)      19941022 - 19950305              Active:

Period of Service Under Review:
 Date of Enlistment: 19950306      Period of E nlistment : Years Extension          Date of Discharge: 19960222
Length of Service : Yrs Mths 17 D ys      Education Level:         Age at Enlistment:       AFQT: 79
Highest Rank /Rate : OSSA Evaluation M arks: Performance: NFIR       Behavior: NFIR    OTA: NFIR
Awards and Decorations ( per DD 214): Rifle Pistol

Periods of UA /C ONF : 19951006-1995104 (9 days)/NONE

NJPs :    
         19951016 : Art icle 86 (Absence from unit),
Art 87 (Missing movement).
         Awarded - Susp - .
         19951221 : Art icle 112a (Wrongful possession of controlled substance),
Art icle 121 (Larceny), Art 134 (Concealed weapon) .
         Awarded - Susp - .

Retention Warnings: .
         19951017 : For unauthorized absence and missing movement .

Types of Documents Submitted/reviewed

 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 Representat ion :              From Member of Congress:
Other Documentation (Describe)




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

Applicant’s Issues

 1. Seeking upgrade to obtain medical benefits from the VA.
2. Developed a mental condition after entering the Navy.
Decision

Date: 20 08 0811           Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall MISCONDUCT ( COMMISSION OF A SERIOUS OFFENSE).

Discussion

 : The Applicant contends that he was diagnosed with a mental condition upon being discharged from the Navy and is now seeking an upgrade to obtain medical benefits from the VA hospital. 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 for additional information regarding .

: ( ) . The Applicant contends his characterization of discharge should be upgraded based on the fact he had a mental disorder that was manifested shortly after he complet ed A School . The Applicant testified he began hear ing voices after A School training but did not seek medical attention while enlisted because he thought it was a part of getting old . The Applicant testified that the voices told him to engage in his misconduct while in the military and to admit to his commanding officer that he used drugs. He further testified that in 2001, five years after being discharged from the Navy , he was i ncarcerated one year for attempting to transport an illegal alien from Mexico into California , and while in confine ment he was diagnosed with Paranoid Schizophrenia. Upon further discussion it was learned the Applicant’s attorney attempted to use the diagnosed Paranoid Schizophrenia as a defense before the California Court in San Diego. However, this defense was not accepted by the judge who subsequently awarded the Applicant confinement time in a San Diego jail for one year.

The Applicant submitted medical documentation from several civilian mental health care providers describing his mental disorder and treatment post discharge. Both of his parents provided testimony regarding their son’s unusual behavior which they claim manifested after he entered the Navy and lead them to believe t he Applicant had a mental condition. Both the Applicant and his parents were opined that the Navy may have given him an injection that induced this mental disorder. They later testified their opinions were based on information they had seen on television and were speculation on their part in an attempt to identify the cause of their son’s behavior. Neither they, nor the Applicant could identif y a drug that had been given to the Applicant during his enlistment which would cause his unusual behavior .

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. The Applicant was administratively separated due to misconduct as evidenced by the commission of a serious offense. Administrative separation due to the commission of a serious offense does not require adjudication by nonjudicial, judicial proceedings or civilian conviction; however, the offense must be substantiated by a preponderance of evidence. The Applicant admitted under oath to having six marijuana butts in his vehicle , stealing a red DoD vehicle decal , going on an unauthorized absence for nine days and missing ship’s movement. Missing ship’s movement is an offense for which a punitive discharge may be awarded if convicted at a special or general court martial and therefore constitutes a serious offense. The Applicant was notified of administrative separation processing on 27 December 1995 due to drug abuse and the commission of a serious offense . The Applicant was provided the opportunity to present his case to an administrative board, but waived that right, thus accepting the discharge recommended in the letter of notification. Based on the evidence contained in the available medical records maintained by the Navy and the non - military medical records provided by the Applicant , there is no indication the Applicant was suffering from a mental condition that would impair his ability to appreciate the wrongfulness of his conduct. The Applicant’s testimony regarding his conviction and incarceration for the illegal transportation of an immigrant approximately five years after his discharge is further evidence that a court deemed him competent to stand trial. The record does not demonstrate that he was not responsible for his conduct or that he should not be held accountable for his actions. The Board determined an upgrade would be inappropriate.

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

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 22 July 1994 until 2 October 1996,
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 87, Missing ship’s movement, Article 112a, Wrongful possession of drugs, and Article 121 , L arceny (value over $500) .

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 other medical related reasons. 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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