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NAVY | DRB | 2009_Navy | ND0900892
Original file (ND0900892.rtf) Auto-classification: Denied

ex-YNSN, USN
Current Discharge and Applicant’s Request
Application Received: 20090304
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)        19991123 - 19991213     Active:   19991214 – 20030529 HON

Period of Service Under Review:
Date of Enlistment: 20030530     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20050909      Highest Rank/Rate: YN2
Length of Service : Y ear ( s ) M onth ( s ) 10 D a y ( s )
Education Level:        AFQT: NFIR
Evaluation M arks:         Performance: 2.8 ( 5 )      Behavior: 2.2 ( 5 )        OTA: 2.95

Awards and Decorations ( per DD 214):     

Period of UA : 20001122-20001124 (2 days ) ; 20030717-20030718 (1 day) ; 20050423-20050518 (26 days) ; 20050519-20050710 (53 days)

NJP :
- 20050 208 :       Art icle 86 ( Absence without leave )
         Article 107 ( False official statement )
         Article 115 ( Malingering )
         Article 123 ( Forgery )
          Awarded : Susp ended :

- 20050721 :       Article 86 ( Absence without leave )
         Awarded : Susp ended:
S CM :   SPCM:   CC:

Retention Warning Counseling :

- 20050208 :       For being diagnosed by a competent medical authority as having a personality disorder not otherwise specified with border line traits.

Administrative Corrections to the Applicant’s DD 214

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

         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19991214 TO 20030529 ”
        
The NDRB will recommend to the C ommander, 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 :

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 86 ( UA , more than 30 days ), Article 107 (False official statement), Article 115 (Malingering), and Article 123 (Forgery) .



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

Applicant’s Issues

 1.        Discharge was based upon adverse behavior caused by sexual trauma.
2.       Discharge was based in one period of service. First enlistment was honorable .

Decision

Date : 2009 1217             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 NAV PERS 1070/613 (Page 13) warning and non-judicial punishments ( ) for o f the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, 20050423-20050518, 26 days ; 20050519-20050710, 53 days, for which she was apprehended ) , 3 specifications , Article 107 (False official statement), Article 115 (Malingering) , and Article 123 (Forgery of a convalescent leave chit ) . Comments from the commanding officer: “ She has been an administrative burden since her first mast appearance. Administrative separation is in the best interest of this command and the Navy.” The Applicant was also diagnosed by medical authority as having personality disorder . M embers may be processed for separation due to personality disorder based on a mental health professional's clinical diagnosis . Separation for personality disorder is not appropriate when separation is warranted for any other reason (e. g., member meets minimum criteria for misconduct processing). The record of evidence reflects the Applicant met the requirements for processing by reason of commission of a serious o ffense. Based on the offenses committed by the Applicant, command administratively processed for separation. When notified for a dministrative s eparation p rocessing, the Applicant waived rights to consult with qualified counsel, submit a written statement, and request an a dministrative b oard.

: (Decisional) ( ) . The Applicant contends her discharge was based on her adverse behavior due to a sexual trauma while in the military . The Applicant did provide documentation from the Veterans Affairs North Texas Heath Care M edical C enter dated September 5, 2008, of her claim of being sexually assaulted while in the Navy and Post-Traumatic Stress Disorder (PTSD) . She alleged that she had been rape d by her admin officer during a unit function in June 2004, and continue d to be touch ed inappropriately and harass ed for several months . In reviewing the Applicant’s medical and service records, the NDRB noted that the Applicant visited the medical clinic over fifty times from mid 2003 to March 2005 . Nowhere within the medical provider’s notes for those visits was any evidence or allegation that the Applicant was ever sexually assault ed while in the service . The board did note that within h er medical separation examination report ( Naval Medical Center, Portsmouth, VA) dated December 7, 2004 was a provider’s comment noting : “She reports being physically, verbally, and sexually abused by her father in her teenage years. ” During this evaluation , other stressors the Applicant claimed she was experiencing were noted : her grandmother’s death (Aug 04) , her boyfriend ’s deploy ment to Kuwait (Oct 04) , a pregnancy test (18 Oct 04 - negative), and a miscarriage that occurred in Nov 2004 -- 4 week s into her pregnancy. The NDRB did note that in 2003 , the Applicant attempted suicide by overdo s ing with 24 metabo ultra pills and was admitted to the psych iatric ward in Dec 2003. Due to her documented poor performance prior to the date of her alleged sexual assault, her considerable misconduct and the many inconsistencies in reports involving alleged sexual assault s , the NDRB was unable to form a basis for relief for the Applicant .

: (Decisional) ( ) . The Applicant contends her discharge was based on one period of service, and her first enlistment from 1999 to 2003 was honorable. The Board appreciates the Applicant ’s first enlistment , during which she earned an Honorable characterization . However , each enlistment is an independent obligation for a specific period of time . Service members receive a separate discharge characterization for each enlistment . The NDRB is unable to consider conduct during one enlistment in determining the discharge characterization of a subsequent enlistment. Also, d espite a s ailor ’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain good order and discipline —the Applicant’s offenses met this standard .

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and service record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain .

For the Applicant’s edification, the NDRB is not an investigative body, and allegations of sexual assault should be made to an appropriate law enforcement organization or the Naval Inspector General ’s Office.

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct .



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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