Upgrade.Vet

NAVY | DRB | 2008_Navy | ND0800459

Original file (ND0800459.rtf) Auto-classification: Denied

ex-ASAA, USN

Current Discharge and Applicant’s Request

Application Received: 20071221

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3630600

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

Summary of Service

Prior Service:
Inactive: US N R (DEP)      19910826 - 19920421              Active:
Period of Service Under Review:
Date of Enlistment: 19920422      Period of E nlistment : Years Extension          Date of Discharge: 19950103
Length of Service : Yrs Mths 12 D ys      Education Level:         Age at Enlistment:       AFQT: 32
Highest Rank /Rate : ASAN Evaluation M arks: Performance: 4.0 ( 1 )     Behavior: 4.0 ( 1 )         OTA: 3.80
Awards and Decorations ( per DD 214): MUC w/b*

NJPs :
         19920507 : Art 115 (Malingering) ;
Art 134 (Communicating a threat) .
Awarded - Susp -
         19921214 : Art 86 (Unauthorized absence ), less than 24 hours ;
Art 92 (Disobey lawful order) , 2 spec ification s .
Awarded - Correctional Custody for 7 days . Susp -
19940921 : Art 89 ( Disrespect for a superior ). Awarded – Conf on for 3 days Susp -
19941026 : Art 91 (Insubordinate conduct) , 2 spec ifications .
Awarded - Conf on for 3 days . Susp -

Retention Warnings: .
         19920507 : For violation of the UCMJ Article 115 ( Malingering ) and Article 134 (C ommunicating a threat ) .
19921211 : For violation of Article 86 ( Unauthorized absence ), less than 24 hours and Article 92 ( Failure to obey a
lawful order ), 2 specifications .

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. Sexual assault in boot camp led to an adjustment disorder .

Decision

Date: 20 08 0530 Location: Washington D.C R epresentation :

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

Discussion

Issue 1 ( ) : RELIEF NOT WARRANTED . The Applicant contends his discharge should be upgraded to an honorable because he was sexually assault ed while in boot camp and this traumatic event resulted in an adjustment disorder. Th e Applicant alleg es he was subjected to a very cruel and traumatic sexual assault, however, based on a review of the Applicant’s statement, medical and service records , there is no indication he reported this sexual assault to his chain of command or sought medical / psychological treatment for the alleged assault . Nor is there any evidence of record to substantiate the allegations he developed an adjustment disorder as a result of the assault.

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. An honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. A general (under honorable conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. The Applicant’s service was marred by 2 retention warnings and 3 non - judicial punishments for violations of the Uniform Code of Military Justice, Article 86 ( Unauthorized absence ); Article 89 ( Disrespect to a superior ); Article 91 ( Insubordinate conduct ); Article 92 ( Failure to obey orders ); Article 115 ( Malingering ) and Article 134 ( Communicating a threat ) . The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service. The Board determined an upgrade in the characterization of service was not warranted .

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and 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 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 the following violation of the UCMJ, Article s: 86 (unauthorized absences over 30 days) ; 89 ( Disrespect to a superior ); 91 ( Insubordinate conduct ); 92 ( Failure to obey orders ); 115 ( Malingering ) and 134 ( Communicating a threat ) .

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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NAVY | DRB | 2008_Navy | ND0800459

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