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NAVY | DRB | 2008_Navy | ND0801746

Original file (ND0801746.rtf) Auto-classification: Denied

ex-DA, USN

Current Discharge and Applicant’s Request

Application Received: 20080820

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3630650 (IN LIEU OF TRIAL BY COURT MARTIAL)

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

Summary of Service

Prior Service:
Inactive:         NONE              Active:

Period of Service Under Review:
Date of Enlistment: 19890228     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19930827      Highest Rank/Rate: DN
Length of Service : Y ear ( s ) M onth ( s ) 00 D a y ( s )
Education Level:        AFQT: 64
Evaluation M arks:         Performance: 3.9 ( 4 )      Behavior: 3.7 ( 4 )        OTA: 3.85

Awards and Decorations ( per DD 214):      (2) (WITH BRONZE STAR)

Periods of UA /C ONF : 19930603 - 19930716 (43 DAYS) / CONF: 19930716 - Date not found in service record

NJP :

- 19891024 :      Article 112a (Drugs - cocaine)
         Awarded: Suspended:

- 19930520 :       Art icle 86 (UA), 2 specifications
         0630-0719, 19930513 (49 minutes)
         Spec 2: 0630-1922, 19930517 ( 12 hours, 52 minutes)
         Article 92 (Failed to obey a lawful order)
         Article 112a (Drugs - marijuana and cocaine)
         Awarded : ORAL ADMONITION Susp ended :

S CM :

SPCM:

C C :

Retention Warning Counseling:

- 19891024 :      For use of cocaine.

- 19920106 :       For argumentative behavior, poor impulse control and aggressive behavior.

NDRB Documentary Review Conducted (date):        1 9960212
NDRB Documentary Review Docket Number:   ND96-00246
NDRB Documentary Review Findings:                 Proper as issued and that no change is issued

administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         “ MILPERSMAN 3630650 ”
         “ KFS ”
         “ IN LIEU OF TRIAL BY COURT MARTIAL ”

The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate.

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 :

Oth er Documentation :

Applicant Testified:
Applicant Available for Questions:
Witnesses: Yes
Observers:

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

1.       Suffering from post-traumatic stress disorder.
2.       Post-service conduct.
Decision

Date: 20090909   Location: Washington D.C.       R epresentation :

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

Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) warnings and non-judicial punishments (NJPs) for of the Uniform Code of Military Justice (UCMJ): Article 86 (Unauthorized absences (UA) – 2 specifications totaling 13 hours), Article 92 (Failure to obey lawful order or regulation to call his command if unable to return on time), and Article 112a (Wrongful use of controlled substances – cocaine – 2 specifications and marijuana – 1 specification). The record reflects the Applicant also had a history of cocaine use prior to entering the Navy even though he denied drug use upon enlisting. Based on the offenses committed by the Applicant, command preferred charges against him 21 July 1993. On 06 August 1993, under the advice of counsel, the Applicant submitted a request for administrative discharge Under Other Than Honorable Conditions in lieu of trial by court-martial and admitted that he was guilty of violating the following offenses: Article 86 (UA), Article 134 (Breaking restriction), Article 112a (Wrongful use of controlled substances, cocaine and marijuana – 2 specifications). On 24 August 1993, the Applicant’s request for separation in lieu of a court-martial was approved.

: (Decisional) ( ) PARTIAL . The Applicant ’s counsel requested an upgrade in the characterization of t h e Applicant’s service to Honorable and the narrative reason changed to convenience of the government based on the contention that the Applicant’s misconduct as discussed supra, is mit igated by his diagnosis of post- traumatic stress disorder (PTSD) and post - service conduct. The following evidence was presented in support of t his request: 1) m e dical record from the Department of Veteran s Affairs of 03 September 2009, indicating the Applicant was evaluated and treated for PTSD and has been receiving psychotherapy since 2004 and other medical documentation ; 2) testimony of his girlfriend who indicated that the Applicant experience s symptoms of PTSD (anxiety and fatigue) on a regular basis ; 3) evidence that he served in the Gulf War during the period of 1991 – 1992 ; 4) character statements from friends, employers and testimony of his 15 year old son who states that his dad is a good provider ; and 5) college transcripts . The NDRB considers post-service conduct to determine if the misconduct committed during active duty was indicative of the Applicant’s overall character or an aberration. After a thorough review of the his official service records, his post-service documentation regarding his PTSD, post-service accomplishments and good citizenship, and taking into consideration his testimony and the testimony of his witness, and the facts and circumstances unique to this case, the NDRB determined that partial relief is warranted based on equitable grounds. The Board voted four to one that the discharge characterization shall change to General (Under Honorable C onditions). The Board determined that in view of the seriousness of the Applicant's misconduct a change in the discharge characterization to H onorable is not warranted.

I n regard to the request to change the narrative reason the Board voted unanimously that the reason for discharge remain the same. As noted supra , the Applicant r equested discharge for the good of the service to escape trial by court-martial. In the request for discharge, the Applicant noted that his counsel had fully explained the implications of his request, that he understood the elements of the offenses for which he was charged and t hat he was guilty of committing the offense s. He further certified a complete understanding of the negative consequences of his actions and that characterization of service would be U nder Other T han H onorable C onditions. While he may feel that his medical condition (PTSD) and perceived lack of treatment was a factor that contributed to his actions, the record clearly reflects his disregard for the requirements of military discipline and demonstrated that he was unfit for further service.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found the discharge was proper and equitable at the time of discharge . However, based on equitable grounds , the awarded characterization of service shall GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain .

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective 5 March 1993 until 21 July 1994,
Article 3630650, PROCEDURES FOR PROCESSING ENLISTED PERSONNEL FOR SEPARATION IN LIEU
OF TRIAL BY COURT-MARTIAL.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications .

C. 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 .

ADDENDUM: Information for the Applicant

Complaint Procedures : If you believe 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 : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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. There are veterans organizations such as the American Legion and the Association of Service Disable Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. 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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. 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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB’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 BCNR can make changes to reenlistment codes. Additionally, the NDRB 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended 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 BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. Outstanding post-service conduct, 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, is considered during Board reviews. Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle. The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate in-service misconduct was an aberration and not indicative of the member’s overall character.

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 NDRB 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 | ND0801746

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