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NAVY | DRB | 2008_Navy | ND0801629
Original file (ND0801629.rtf) Auto-classification: Denied
ex-NC2, USN
Current Discharge and Applicant’s Request
Application Received: 20080801
Characterization of Service Received:
Narrative Reason for Discharge: (SERIOUS OFFENSE)
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
Inactive:         NONE              Active:            19731101 - 19771031
                                             19800809 - 19810808
                                             19841109 - 19870302
                                    -R        UNKNOWN - 19870404 To enlist in USMC
                                             19880303 - 19910302
                                    -R        19920827 - 19960530
                                             19960531 - 19990825
                                             19990826 - 20021017

Period of Service Under Review:
Date of Enlistment: 20021018     Period of E nlistment : Years Extension         Date of Discharge: 20051103
Length of Service : Y ear s M onth s 17 D a ys      Education Level:        Age at Enlistment: 47     AFQT: 70/61
Highest Rank /Rate :       NC1       Evaluation M arks: Performance:   4.0 ( 3 )          Behavior: 3.3 ( 3 )         OTA: 3.57
Awards and Decorations ( per DD 214): NDSM (3) NRMSM (2) GWA (16) NRSR MUC GCM (3)

Periods of UA /C ONF : NJP : S CM : C C : Retention Warnings:

SPCM:
- 20060829 : Art icle 91 (Disrespectful in language toward a Chief Petty Officer)
          Article 128 (Assault Chief Petty Officer by striking at him with a retractable baton type device)
         Sentence : RIR E-5 CONF 90 DAYS (20050829-20051102 (66 DAYS)) FOP 3 MOS
Suspended: CONF 30 DAYS FOR 12 MOS FOP IN EXCESS OF $1937.00

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 Representat ion :    From Congress m ember :

         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, Article 91 - Disrespectful language toward a Chief Petty Officer, and Article 128 – Assault consummated by a battery .




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

Applicant’s Issues

 1. Seeki n g full VA benefits for medical disorders caused by his active duty service.
2. Command acted against medical advice and maintained him in his work position as a recruiter.
3 . Command awarded an “Under O ther T han H onorable ( OTH ) Conditions” discharge without input from the Applicant or his attorney .

Decision

Date: 20 08 113    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 is asking for full VA benefits for medical disorders allegedly resulting from his service on active duty. 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 .

: ( ) . The Applicant contends the characterization of service should be upgraded because his command went against medical advice by retaining him in a position that intensified his depression, anxiety and PTSD. In reviewing discharges, the Board presumes regularity in th e conduct of Government affairs . The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue s. The record reflects the Applicant was convicted at a special court martial on 29 August 2005 for violations of the U nifrom C ode of M ilitary J ustice (UCMJ): Article 91 ( Disrespectful language toward a chief petty officer ) and Article 128 ( Assault on a chief petty officer ) . These are considered serious offenses which could have warranted a punitive discharge and confinement if awarded by a special or general court-martial. The Applicant did receive a SPCM but was not awarded a punitive discharge.

The Board requested the Applicant’s medical records on 6 August 2008 from the Department of Veteran’s Affairs. However, the records were not available at the time of the documentary review. There is no evidence in the service record s available , nor has the Applicant produced any evidence to support h is contention the command caused his mental health condition to worsen by disregarding the medical advice of his psychiatrist and retaining him in his position. The statement provided by t h e Applicant’s treating psychiatrist of 27 February 2007, after his release from active duty , did not convince the Board the Applicant was not responsible for his misconduct or that he should not be held accountable for his actions. T here is substantial evidence to support the basis for separation due to misconduct – commission of a serious offense . Based on the seriousness of the offenses committed and the lack of mitigating evidence the Board determined the awarded discharge characterization was appropriate and an upgrade would be inappropriate.

: ( ) The Applicant also alleges the command gave him an OTH without input from him or his attorney. The record reflects the Applicant was notified of the administrative separation processing on
27 September 2005 based on misconduct due to the commission of a serious offense. The Applicant waived all of his rights, including the right to consult with qualified counsel. The commanding officer forwarded the administrative separation package to Commander, Navy Personnel C ommand recommending separation with an OTH discharge. The discharge was approved and the command was directed to discharge the Applicant with an OTH discharge. The aforementioned evidence demonstrates the Applicant’s contention that he did not have input on the OTH is without merit and the command followed proper procedure in discharging the Applicant. Therefore, relief is denied.

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, 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 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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