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NAVY | DRB | 2008_Navy | ND0801103
Original file (ND0801103.rtf) Auto-classification: Denied

ex-AEAR, USN
Current Discharge and Applicant’s Request
Application Received: 20080416
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
 Inactive: USNR (DEP) 20000926 - 20001022                 Active:

Period of Service Under Review:
 Date of Enlistment: 20001023      Period of Enlistment : Years Extension  Date of Discharge: 20021218
Length of Service: Yrs Months 26 D ays  Education Level:         Age at Enlistment:       AFQT: 53
Highest Rank/Rate: AEAN   Evaluation Marks: Performance: 2.0 ( 1 )    Behavior: 1.0 ( 1 )         OTA: 1.33
Awards and Decorations (per DD 214): NDSM

 NJPs:
20020701: Article 86 (Unauthorized absence),
         Article 92 (Fail to obey a lawful order),
         Article 95 (Resisting apprehension),
         Article 134 (Disorder conduct).
 Awarded: . Susp: . Vacated 20021118.

 20020715: Article 86 (Unauthorized absence from appointed place of duty).
 Awarded: . Susp: .

 20021118: Article 86 (Unauthorized absence), 2 specifications,
         Article 89 (Disrespect by deportment to a Commissioned Officer),
         Article 92 (Disobeying a lawful order).
 Awarded: . Susp: .
Retention Warnings: .
 20020701 : For you appeared before the Commanding Officer on 20020701 for VUCMJ, Art. 86 unauthorized
absence, Art. 92 fail to obey a lawful order, Art. 95 resisting apprehension, Art. 134 disorderly conduct.

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 Representation:              From Member of Congress:
Other Documentation (Describe):
         - Letter from C. H. R., National Service Officer



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

Applicant’s Issues

 1. Feels her discharge should have been medical.
2. Feels she was mislead as to her administrative separation rights.
3. Feels she was treated unjustly because she made complaints to senior officials.

Decision

Date: 20080911   Location: Washington D.C. R epresentation : Paralyzed vets of america

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

 : ( ) . The Applicant states her misconduct was a direct result of her depression and she should have been given a medical vice administrative discharge. 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’s record of service was marred by three non-judicial punishments for violations of the Uniform Code of Military Justice (UCMJ), Articles 86, 89, 92, 95 and 134; 1 retention warning; and 1 adverse personal evaluation report. Violation of Article 92 alone is punishable, if adjudicated at a special or general court-martial, by a Dishonorable Discharge or Bad Conduct Discharge and up to 2 years in prison. The command did not pursue a punitive discharge for any of the numerous violations but opted instead for an administrative discharge.

A review of the Applicant’s service and medical records for information concerning her depression indicated on 26 June 2002, the Applicant was hospitalized because of a suicide gesture; she drank a bottle of Nyquil. Upon being discharged on 28 June 2002 and returned to military duty the discharging military physician wrote she was fit for full duty, but referred her to individual counseling. The Applicant was subsequently seen for a mental health assessment. On 23 July 2002 the military mental health assessment determined although the Applicant suffered from depression as a result of a personal relationship break up, “her insight and judgment for activities of daily living is normal.” His diagnostic impression was that the Applicant had an “Adjustment Disorder with Depressed Mood.” However, once again, she was found psychologically fit for full duty and this was annotated by the physician. He recommended counseling and a follow-up appointment. No where in her military medical records is there a recommendation for administrative separation due to depression and the Applicant presents no additional evidence to support her claim. The Board determined that an upgrade of the character of her discharge would inappropriate.

: ( ) . The Applicant claims the ship’s chaplain mislead her by giving her advice to waive the administrative review board offered during her separation process. A review of the Applicant’s discharge paperwork indicated on the ADMINISTRATIVE SEPARATION PROCESSING NOTICE dated 26 November 2002, the Applicant clearly initialed she voluntarily waived her right to have a hearing before an Administrative Board. She produces no evidence to support her claim she received advice to waive this Board by the ship’s chaplain nor is there any documentation in the record stating the chaplain provided such advice. Based on lack of evidence to support this claim, the Board determined an upgrade of the character of her discharge is inappropriate.

: ( ) . The Applicant claims she was unfairly singled out and disciplined because she expressed her views over her poor performance report rating to senior officials. The Applicant does not state what views would have caused her to be targeted or why, nor does she produces any collaborating testimony from witnesses. She does not show that she was not responsible for her misconduct based on being unfairly singled out or disciplined by her command. As stated in the above paragraph for Issue 1, the Applicant’s record of service was marred by numerous violations of the UCMJ Articles for which the command took corrective, and necessary, disciplinary action against the Applicant. There is nothing in the service record which indicates the action taken by the command was in anyway unfair or unjustly singled the Applicant out. Based on a lack of evidence supporting the Applicant’s position, the Board determined an upgrade of the character of her discharge would be inappropriate.

After 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), re-issued October 2002, effective 22 August 2002 until 25 January 2004, Article 1910-142, SEPARATION 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, Articles 86, 89, 92, 95 and 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, 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 or is referred to a court martial 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 special 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. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

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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