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NAVY | DRB | 2008_Navy | ND0801633
Original file (ND0801633.rtf) Auto-classification: Denied

ex-FA, USN
Current Discharge and Applicant’s Request
Application Received: 20080731
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: USNR (DEP)     19911219 - 19920106              Active:

Period of Service Under Review:
 Date of Enlistment: 19920107      Period of Enlistment : Years Extension         Date of Discharge: 19940202
Length of Service: Years Months 26 D ays        Education Level:         Age at Enlistment:       AFQT: 46
Highest Rank/Rate:       FN        Evaluation Marks: Performance:   3.2 ( 2 )  Behavior: 3.5 ( 2 )        OTA: 3.40
Awards and Decorations (per DD 214):    

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

NJP:
- 19920702 : Article 92 (Dereliction in the performance of duties)
Article 107 (False official statement)
Awarded: Suspended:

- 19931209 : Article 86 (UA), 2 specifications
        - Specification 1: 0805, 19931114 to 1030, 19931115 (1 days, 2 hours, 25 minutes)
         - Specification 2: 0730, 19931116 to 0730, 19931130 (14 days)
Awarded: Suspended:

Retention Warnings:
- 19931025 : For personality disorder manifested by difficulty dealing with stress, repeated conflicts and medical visits,
and character and behavior disorder.
- 19931209 : For UA, 2 specifications.

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 5, effective 5 March 1993 until 21 July 1994,
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 violation of the UCMJ, Article 107, False official statement.


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

Applicant’s Issues

 1. Misconduct was the result of family problems and inability to deal with childhood issues.

Decision

Date: 20081113   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 contends her discharge should be upgraded because at the time of separation from the Navy she was experiencing family problems and an emotional breakdown due to the inability to deal with abuse that occurred during her childhood. The Applicant contends she has now learned how to manage her stress and anger through counseling and mentoring teens. She also submitted evidence of post service conduct documenting completion of her Bachelor of Science in Business Administration. 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 record reflects the Applicant received 2 retention warnings and 2 NJP’s during her enlistment for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (UA), Article 92 (Failure to obey lawful order or regulation), and Article 107 (False official statement). These are considered serious offenses which could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentence by a special or general court martial. The command did not refer the Applicant for a court martial but opted instead for an administrative discharge. A review of the medical records reflected the Applicant underwent several psychological evaluations for both suicidal and homicidal behavior and remarks, on 6 January 1994 she was recommended for expeditious administrative separation with a diagnosis of a Personality Disorder with borderline narcissistic and immature features.

The Applicant has requested an upgrade to her discharge characterization to “General (Under Honorable Conditions)”. A “General (Under Honorable Conditions)” 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. An “Under Other Than Honorable” conditions discharge is appropriate when the basis for separation is commission or omission of an act that constitutes a significant departure from the conduct expected from a service member.

Based on the foregoing evidence of misconduct, the Board determined there was sufficient basis for separation due to misconduct for the commission of a serious offense. However, the Board considered the documentation contained in the service and medical record that reflected the mental state of the Applicant and determined that was a proper and sufficient mitigating factor. The Board acknowledged an upgrade in the characterization of service to “General (Under Honorable Conditions)” would be appropriate. The narrative reason properly reflects the reason for discharge and shall remain the same.

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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