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NAVY | DRB | 2008_Navy | ND0801681
Original file (ND0801681.rtf) Auto-classification: Denied

ex-ADAN, USN
Current Discharge and Applicant’s Request
Application Received: 20080805
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) 19911002 - 19920413                 Active: 19920414 – 19971125 HON
                                                                         19971126 – 19991225 HON
         
Period of Service Under Review:
 Date of Enlistment: 20000921      Period of Enlistment : Years Extension         Date of Discharge: 20030311
Length of Service: Years Months 18 D ays        Education Level:        Age at Enlistment:      AFQT: 41
Highest Rank/Rate:       AD2       Evaluation Marks: Performance:   3.3 (4)         Behavior: 2.0 (4)        OTA: 2.86
Awards and Decorations (per DD 214): (2) (3) (2) (2) (2)

Periods of UA: (5 days)

 NJP:
- 20020329 : Article 128 (Assault consummated by battery)
 Awarded: Suspended:

- 20021030 : Article 86 (UA), 20020915-20020919 (5 days)
 Awarded: Suspended:

- 20021125 : Article 86 (UA), 3 specifications
 Awarded: Suspended:

SCM: SPCM: CC:

Retention Warnings:
- 20020329 : For NJP for violation of UCMJ Article 128.

Types of Documents Submitted/reviewed

 Related to Military Service:     
DD 214:         Service/Medical Record:                  Other Records:
         -Emails, request chits and other documents related to period of service, but not part of service record.
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), re-issued October 2002, effective 22 August 2002 until 25 January 2004, Article 1910-140, SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.
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 128.


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

Applicant’s Issues

 1. Employment opportunities.
2. Mitigating circumstances.
3. Mental illness not treated.

Decision

Date: 2008 1121             Location: Washington D.C.        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall PATTERN OF 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 .
: ( ) . The Applicant contends he is entitled to a discharge upgrade due to mitigating circumstances in his case. Specifically, he claims the death of his brother and the need to move his mother to a new residence lead to his UA between 15-19 September 2002. 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 NJPs and one retention warning for violation of the Uniform Code of Military Justice (UCMJ): Article 86 (UA) and Article 128 (Assault consummated by battery). Violation of Article 128 is considered a serious offense, 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 used. The record of evidence shows the Applicant was granted emergency leave, including an extension, between 26 August-14 September 2002. The record also shows the Applicant called to request a second extension on 15 September 2002, the day after his leave had expired. The Applicant was directed to contact his Leading CPO or Division Officer to request the extension. The record shows the Applicant did not make the additional call as directed, he did not request the second extension until after his leave had expired, and he did not follow proper procedures when requesting the extension. The NDRB rejects the Applicant’s contention based on the lack of evidence supporting his claim and determined the awarded discharge characterization was appropriate; an upgrade would be inappropriate.

 : ( ) . The Applicant contends he is entitled to a discharge upgrade due to his anxiety and depression, which were not properly treated. The record of evidence, including evidence submitted by the Applicant does not contain a diagnosis which states the Applicant was not responsible for his conduct, or should not be held accountable for his actions. The Applicant also states he is receiving treatment from the Veteran’s Administration but submits no evidence supporting this statement. The fact the Applicant is currently receiving counseling has no bearing on the Applicant’s record of misconduct six years ago. The NDRB determined the awarded discharge characterization was appropriate; 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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