Upgrade.Vet

NAVY | DRB | 2008_Navy | ND0801610

Original file (ND0801610.rtf) Auto-classification: Denied

ex-CTIC, USN

Current Discharge and Applicant’s Request

Application Received: 20080725
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) 19880816 - 19890619                 Active: 19890620–19950522 HON
                                                               19950523–19990930 HON
                                                               19991001–20050929 HON

Period of Service Under Review:
Date of Enlistment: 20050930      Period of Enlistment : Years Extension Date of Discharge: 20060717
Length of Service: Years Months 17 D ays       Education Level:         Age at Enlistment:       AFQT: 90
Highest Rank/Rate:       CTIC     Evaluation Marks: Performance: 3.0 (2)   Behavior: 2.0 (2)
Awards and Decorations (per DD 214): Rifle Pistol

Periods of UA/CONF: SCM: SPCM: CC: Retention Warnings:

NJP:
- 20060331 : Article 89 (Disrespect toward a superior commissioned officer), on or about 20060223 grabbed a female
commissioned officer, with unlawful force and kissed her without lawful consent.
Article 92 (Failure to obey a lawful order or regulation), 2 specifications:
                  - Specification 1: On or about 20060223 did violate a lawful general regulation by making
unwelcomed sexual advances toward LTJG J. and CTI1 S.
                  - Specification 2: On or about 20060223, did violate a lawful order issued by CO NIOC GA by
                  making unwelcome sexual advances toward LTJG J. and CTI1 S.
Article 134 (Indecent Assault), on or about 20060223 did commit an indecent assault upon LTJG J., a person
not his wife, by grabbing her with unlawful force and kissing her without consent, with intent to
gratify his sexual desires.
Article 134 (Disorderly conduct), on or about 20060223, was drunk and disorderly, which conduct was of a
nature to bring discredit upon the armed forces.
Awarded: Suspended:

Types of Documents Submitted/reviewed

Related to Military Service:
DD 214:         Service/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 Congress member:

Other Documentation (Describe):

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until Present, 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 89 and 92.

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

Applicant’s Issues

1. Reenlistment opportunity.
2. Applicant denied due process during his Administrative Separation Board.
3. Length of service at time of discharge.

Decision

Date: 2008 1106 Location: Washington D.C. R epresentation : CIVILIAN COUNSEL

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

Discussion

: 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 , specifically the paragraph concerning , regarding this Issue.

: ( ) . The Applicant contends he is entitled to a discharge upgrade due to lack of due process during his administrative separation board hearing. Specifically, the Applicant contends the administrative separation board failed to consider a psychological condition, such as alcoholism, Post Traumatic Stress Disorder (PTSD) or his grievance over the death of his father, which may have served as a mitigating factor in his behavior and misconduct. 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 one NJP during the period of enlistment in question for violations of the Uniform Code of Military Justice (UCMJ): Article 89 (Disrespect toward a superior commissioned officer) ; Article 92 (Failure to obey a lawful order or regulation) ; Article 134 (Indecent assault) ; and Article 134 (Disorderly conduct) . Violations of Article 89 and Article 92 are considered serious offenses, punishable by punitive discharge and confinement if adjudicated and awarded by a special or general court-martial. The command did not pursue a punitive discharge but instead opted for an administrative discharge with a “General (Under Honorable Conditions)” characterization of service, when the less favorable “Under Other Than Honorable” characterization could have been given.

The NDRB reviewed the record of evidence and found no indications the Applicant ever sought out counseling or assistance for alcoholism, PTSD, or for emotional distress over the death of his father. Additionally, there is no record of a diagnosis for any psychological condition, record of complaint for difficulty adjusting to the loss of his father, or indication of any psychological problem whatsoever until after the misconduct occurred. Even then, it was limited to alcohol abuse and not PTSD. The Board noted the Applicant participated in substance abuse treatment following his misconduct, but the record of evidence does not show the Applicant was not responsible for his actions due to any psychological or medical condition or shouldn’t be held accountable for his misconduct for any reason. The NDRB rejects the Applicants contention his misconduct, which included multiple indecent assaults on a junior enlisted Sailor and a commissioned officers, is in any way mitigated by alcohol abuse, PTSD, or the death of his father. The Board determined the awarded discharge characterization was appropriate; an upgrade would be inappropriate.

: ( ) . The Applicant contends he is entitled to a discharge upgrade to “Honorable” due to a record of service lasting seventeen years. For the edification of the Applicant, d espite a Sailor’s extensive prior record of service, certain serious offenses warrant separation from the naval service in order to maintain proper order and discipline. When the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under “Honorable” conditions. A “General (Under Honorable Conditions)” characterization of service is appropriate if the member’s service has been honest and faithful but significant

negative aspects of the member’s conduct or performance outweighs positive aspects of the member’s military record. The NDRB acknowledges the Applicant’s misconduct as a significant negative aspect of his overall conduct and performance and determined the awarded discharged characterization was appropriate given the Applicant’s serious offenses; an upgrade 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

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 or for any basis wherein an Other Than Honorable Discharge is authorized, 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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NAVY | DRB | 2008_Navy | ND0801610

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