Upgrade.Vet

NAVY | DRB | 2008_Navy | ND0801929

Original file (ND0801929.rtf) Auto-classification: Denied

ex-AOAN, USN

Current Discharge and Applicant’s Request

Application Received: 20080919

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: US N R (DEP)      20030912 - 20040809     Active:

Period of Service Under Review:
Date of Enlistment: 20040810     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20061122      Highest Rank/Rate: AOAN
Length of Service : Y ear s M onth s 13 D a ys
Education Level :        AFQT: 38
Evaluation M arks: Performance: 4.0 ( 1 ) Behavior: 3.0 ( 1 ) OTA: 3.50

Awards and Decorations ( per DD 214):

Periods of UA /C ONF : SCM: SPCM: CC: Retention Warning Counseling :

NJP :
- 20041217 : Art icle 92 (U nderage drinking )
Awarded : Susp ended :

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 :

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 20 June 2005 until 28 May 2008, Article 1910-122, Separation By Reason of Convenience of the Government - Personality Disorder(s).

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 92 .

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

Applicant’s Issues

1. One incident of underage drinking doesn’t warrant awarded discharge characterization .
2. Medical issues.

Decision

Date: 20 0 9 0416 Location: Washington D.C . R epresentation :

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

Discussion

: ( ) . The Applicant contends his one mishap of underage drinking should not preclude him from an “Honorable” discharge. 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 one NJP for violation of the Uniform Code of Military Justice (UCMJ): Article 92 (Violation, failure to obey general order or regulation – underage drinki ng). An Article 92 violation is considered a serious offense 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.

In the Applicant’s Performance Evaluation for the period 05JUL16 to 06AUG16, it states the Applicant’s “otherwise excellent performance has been marred by alcohol incidents.” While the Applicant had only one NJP, it is clear he was involved in other alcohol-related incidents. For the edification of the Applicant, a single adverse incident such as discreditable involvement with civil/military authorities that is prejudicial to good order and discipline may be used to characterize a Sailor’s overall service. The incident does not have to result in punishment (NJP, court-martial, or civil conviction). Although the Applicant’s NJP occurred early in his enlistment, the Board could not fully evaluate the Applicant’s conduct during this period because of the lack of military service records an d must rely on a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the available record s , nor has the Applicant produced any documented evidence for the Board’s consideration, to support the contention the Applicant deserves an upgrade in characterization. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. The Board determined the awarded discharge characterization was appropriate and an upgrade would be inappropriate.

Issue 2: ( ) . The Applicant contends he did not finish his enlistment because he got sick and was diagnosed for service-connected Post Traumatic Stress Disord er (PTSD) and severe depression; he claims he is “currently service connected 100% for PTSD and severe depression. ” The Applicant was separated for a personality disorder and per MILPERSMAN 1910-122, members diagnosed with PTSD or a traumatic brain injury may not be separated based on a personality disorder. The Board was not able to review the Applicant’s medical record and the Applicant failed to provide any documentation to support his c laim. Therefore, the Board must again rely on a presumption of regularity in the conduct of its affairs and determined an upgrade would be inappropriate. The Board determined the awarded discharge characterization was appropriate and 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, 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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NAVY | DRB | 2008_Navy | ND0801929

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