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NAVY | DRB | 2008_Navy | ND0801717
Original file (ND0801717.rtf) Auto-classification: Denied

ex-MMFN, USN
Current Discharge and Applicant’s Request
Application Received: 20080812
Characterization of Service Received: OTHER THAN HONORABLE
Narrative Reason for Discharge: DUE TO COMMISSION OF A SERIOUS OFFENSE
Authority for Discharge: MILPERSMAN

Applicant’s Request: Characterization change to:
                  Narrative Reason change to: CONVENIENCE OF THE GOVERNMENT

Summary of Service

Prior Service:
 Inactive: USNR (DEP) 20020416 - 20020619                 Active:

Period of Service Under Review:
 Date of Enlistment: 20020620      Period of Enlistment : Years Extension         Date of Discharge: 20070315
Length of Service: Years Months 26 D ays        Education Level:         Age at Enlistment:       AFQT: 95
Highest Rank/Rate:       MM 3      Evaluation Marks: Performance:   NFIR      Behavior: NFIR   OTA: NFIR
 Awards and Decorations (per DD 214):     NDSM GCM SSDR (2) GWOTSM GWOTEM
NJP:
20070125: Article 86 (UA, 20061221 to 20070113)
Article 111 (Drunken operation of a vehicle on or about 20070106)
 Awarded: Suspended:

SCM: SPCM: CC: Retention Warnings:

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):
- Letters from father
- Statement from father
- Letters from Congressional Affairs
- Letters from Applicant’s father to Senator T. C.
- Letter from Senator T. C. to RADM M. F.

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 111, Drunken operation of a vehicle.


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

Applicant’s Issues

 1. Medical situation that led to discharge was not afforded appropriate and timely response.
2. Misconduct that led to discharge was an isolated incident.

Decision

Date: 20081204           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

 : (Equity) RELIEF NOT WARRANTED. The Applicant contends her discharge should be upgraded because the medical situation that resulted in her discharge “was not afforded appropriate and timely response”. The Applicant does not specify what her medical situation is nor does she provide any documentation pertaining to this condition. The Report of Medical History, section 30, completed on 22 February 2007 during her separation process reflects the Applicant was seen by the “ship’s psych” and the condition was noted to be “NCD” or Not Considered Disqualifying. The separation medical assessment of 22 February 2007 also indicated the Applicant had no medical issues at the time of discharge. Based on a review of available medical records, there was no medical disability existing at the time of the Applicant’s separation from active duty or indication the command failed to properly refer the Applicant for a psychological evaluation. While the Applicant’s father expressed concern the ship’s leadership was indifferent ensuring his daughter received responsive mental health support the record does not support the Applicant had mental health issues which caused her entering into a UA status or driving while intoxicated; nor where there mental health issues diagnosed which mitigated her behavior. In fact, at the time of her discharge the Applicant provided information claiming she was in good health and the attending health care provider acknowledged she had “no issues”.

For the edification of the Applicant, service members who are deemed medically unfit are normally reviewed by a Physical Evaluation Board (PEB). However, if the service member conducts misconduct the PEB is suspended and the member is processed in accordance with the UCMJ for their misconduct violations. The Applicant was not being processed or reviewed by a PEB at the time of her misconduct or separation. The Applicant is directed to the Addendum, specifically the paragraph concerning , for additional information regarding .

: ( ) . The Applicant also contends the characterization of discharge should be upgraded because the condition that led to her discharge was an isolated incident. 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. Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Naval service in order to maintain proper order and discipline. The Applicant’s service record is marred by award of NJP on 25 January 2007 for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (UA) of 23 days and Article 111 (Drunken operation of a vehicle), thus substantiating the misconduct for which she was separated. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge. Based on the length of the unauthorized absence, the seriousness of the offenses committed and the lack of mitigating evidence, the Board determined the awarded discharge was appropriate and an upgrade is not warranted .

 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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