Upgrade.Vet

NAVY | DRB | 2008_Navy | ND0800555

Original file (ND0800555.rtf) Auto-classification: Denied

ex-AZ1, USN

Current Discharge and Applicant’s Request

Application Received: 20080115

Characterization of Service Received:

Narrative Reason for Discharge: IN LIEU OF TRIAL BY COURT MARTIAL
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
Inactive: US N R (DEP)      19800809 - 198 10125              Active:
Period of Service Under Review:
Date of Enlistment: 19 980319      Period of enlistment : Years Extension          Date of Discharge: 20020320
Length of Service : 15 Yrs Mths 26 D ys    Education Level:         Age at Enlistment:       AFQT: 78
Highest Rank /Rate : AZ1    Evaluation marks: Performance: 4.0 ( 5 )     Behavior: 4.0 ( 5 )          OTA: 4
Awards and Decorations ( per DD 214): JSAM, x6, , x4, , , ,

Periods of UA /C ONF : 19991108-20000124, 20000531-20011228

NJPs :
         19981013 : Art(s) 92 . Awarded - Susp -

Retention Warnings: .
         19990823 : For Art 112a (Drug Abuse) .

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 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. Unfair Treatment at Command
2. PTSD
3 Record of Service

Decision

Date: 20 08 0404 Location: Washington D.C R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall IN LIEU OF TRIAL BY COURT MARIAL .

Discussion

Issue 1: (Equity) In the Applicant’s letter to the Board s he states that h er misconduct was the result of being harassed and subsequently no action was taken by h er chain of command. In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence (from the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge, and evidence submitted by the Applicant) to rebut the presumption. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support h er claim. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that s he was sexually harassed and after reporting no action w as taken. However, even if the Applicant could document h er claims this would neither amount to a justification nor to a defense for the Applicant’s own misconduct. The Applicant requested discharge for the good of the service to escape trial by court-martial. In the request the Applicant noted that h er rights were thoroughly explained to h er and that s he waived h er right to consult counsel . Furthermore, the Applicant admitted guilt to the charges preferred against h er, violation of UCMJ Article 86 (unauthorized absence, more than 30 days). She further certified a complete understanding of the negative consequences of h er actions and that characterization of service could be under other than honorable conditions. Violations of UCMJ Article 86, unauthorized absence in excess of 30 days, carries a maximum penalty of a Bad Conduct Discharge and 1 year of imprisonment if adjudicated by a court martial . The Applicant’s conduct, which forms the primary basis for determining the character of h er service, reflects h er willful failure to meet the requirements of h er contract with the U.S. Navy and falls far short of that required for an upgrade .

Issue 2 (PTSD). The Applicant contends that h er problems may be attributed to Post Traumatic Stress Disorder (PTSD) . The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support h er issue. The NDRB found no medical diagnosis in the record to support the Applicant's claim nor did the Applicant produce any medical diagnosis by competent medical authority to support h er claim. While s he may feel that this was the underlying cause of h er misconduct, the record clearly reflects h er willful misconduct and demonstrated s he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for h er conduct or that s he should not be held accountable for h er actions.

Issue 3: (Equity) The Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service. While the Applicant’s record of service prior to her misconduct was noteworthy, t here is credible evidence in the record that the Applicant used illegal drugs and was absent without leave for more than 30 days . The evidence of record does not demonstrate that the Applicant was not responsible for h er conduct or that s he should not be held accountable for h er actions. When a Sailor ’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. An under other than honorable conditions discharge 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 Applicant’s conduct during the current period of service, which forms the primary basis for determining the character of h er service was marred by the award of one retention warning and one nonjudicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ), Article 92 and unadjudicated violations of Articles 86 (unauthorized absence greater than 30 days) and 112a (Drug Abuse) . Violations of UCMJ Articles 86, 9 2 , and 112a are considered serious offenses for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial. An upgrade to honorable would be inappropriate.

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. 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 that

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 29, effective 11 Jul 2000 until 21 Aug 2002, Article 1910-106 (formerly 3630650), SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

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 8 6 , 92 and 112a ,

D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications .

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 | 2008_Navy | ND0800555

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