Upgrade.Vet

NAVY | DRB | 2009_Navy | ND0900976

Original file (ND0900976.rtf) Auto-classification: Denied

ex-SR, USN

Current Discharge and Applicant’s Request

Application Received: 20090313

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)        20060307 - 20060807     Active:

Period of Service Under Review:
Date of Enlistment: 20060808     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20080627      Highest Rank/Rate: SN
Length of Service : Y ear ( s ) M onth ( s ) 20 D a y ( s )
Education Level:        AFQT: 41
Evaluation M arks:         Performance: 1.0(1) Behavior: 1.0(1) OTA: 1.0

Awards and Decorations ( per DD 214):      NMCOSR

Periods of UA /C ONF :

NJP :
- 20080516 :       Art icle 86 ( Failure to go to appointed place of duty ), 2 specifications
         Awarded : Susp ended :

- 20080528 :       Article 86 ( Failure to go to appointed place of duty ), 5 specifications
         Awarded : Susp ended:

- 20080616 :       Article 86 ( Failure to go to appointed place of duty ), 4 specifications
         Awarded : 3 DAYS B&W Susp ended:

S CM :    SPCM:    C C :

Retention Warning Counseling :

- 20080517 :       For NJP on 20080516 for violation of the UCMJ, Article 86, Failure to go to appointed place of duty (2 specifications)

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 1910-140, 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 .

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

Applicant’s Issues

1. Has a history of depression and if given proper medication would have been able to cope better.

Decision

Date: 20091112 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 discharg e if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of g overnment al 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) warning and three nonjudicial punishments (NJPs) for violations of the Uniform Code of Military, Article 86 (Failure to go to appointed place of duty – 11 specifications). Per the Commanding Officer’s (USS Blue Ridge) letter of 17 June 2008, the Applicant was administratively separated due to a pattern of misconduct based on her substandard performance and failure to show up for work on numerous occasions. When notified of administrative separation processing using the administrative board procedure, the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board.

: (Decisional) ( ) . The Applicant contends she has a history of depression and was tr eated with Prozac which did not provide relief. The Applicant also contends that she would have been able to cope better had she been given the proper medication. The Applicant’s Consultation Sheet (SF 513), Medical Record of 19 March 2008 indicates the following: 1) she was referred to a mental health clinic due to increased bouts of depression after being seen by the ship’s medical officer and treated for depression; 2) she was given an initial treatment of prozac 20 mg and then it was increased to 40 mg; 3) she noticed some positive effects and drowsiness from the medication; 4) she stopped her medication about one month later based on a recommendation from her mother; 5) her symptoms of depression worsened “ to the point of her being found crying in berthing and her always wanting to sleep” since she decided to stop taking the medication. Furthermore, the evidence of record reflects that the Applicant was seen at a mental health clinic on 21 March 2008, diagnosed with d epression and recommended for continued supportive individual counseling, medication treatment, enrollment in a depression wellness group and stress management group. It was also determined that the Applicant’s risk of harm to herself or others was low and acceptable and she was deemed fit for duty and responsible for all actions. There is no evidence in the record or provided by the Applicant to support the contention that the Navy failed to properly treat her depression. To the contrary, the evidence of record reflects that the Applicant was evaluated, treated for depression and referred to a mental health provider after she continued to experience bouts of depression despite adjustment s being made in the dosage of her medication. The medical records also reflects that the Applicant was noncompliant with her treatment in that she stopped taking her Prozac after her mom told her that it was for crazy people. Based on a review of the record of evidence, the Board determined that there was sufficient evidence to support a basis for separation due to a pattern of misconduct as evidenced by her three NJPs and one retention warning during this enlistment. Th e evidence of record does not demonstrate that the Applicant was not responsible for h er conduct or that s he should not be held accountable for h er actions. However, taking into consideration the minor offenses committed by the Applicant and her mental condition as evidenced by her bouts of depression the Board concluded th at there was sufficient evidence to mitigate the Applicant’s misconduct .

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, and d ischarge p rocess, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain .

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 Disabled American 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 their 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 | 2009_Navy | ND0900976

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