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NAVY | DRB | 2009_Navy | ND0901107
Original file (ND0901107.rtf) Auto-classification: Denied

ex-ICFR, USNR
Current Discharge and Applicant’s Request
Application Received: 20090324
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:         NONE              Active:  

Period of Service Under Review:
Date of Current Enlistment: 20050113     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20061006      Highest Rank/Rate: ICFA
Length of Service : Inactive Y ear( s ) M onth( s ) 25 D a y ( s ) Active Y ear ( s ) M onth ( s ) 00 D a y ( s )
Education Level:        AFQT: 57
Evaluation M arks:         Performance: 3.0 (1)      Behavior: 1.0 (1)        OTA: NFIR

Awards and Decorations ( per DD 214):     

Periods of UA /C ONF :

NJP :
- 20060624 :       Art icle 92 ( Failure to obey order or regulation )
         Article 108 (Military property of the U.S. sale, loss, damage, destruction, or wrongful disposition)
         Awarded : Susp ended :

S CM :    SPCM:    C C :      Retention Warning Counseling :


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 /To Representat ion :            From /To 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 92 , Failure to obey a lawful order or regulation and Article 108 (Willful destruction of government property).



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

Applicant’s Issues
Applicant’s Issues

1.       Wants reentry code (RE code ) changed for reenlistment purposes.
2.       Not given the opportunity to redeem himself.
3.       Discharge too harsh in light of mental health problems and minor offenses.
4.       Youth and immaturity.
5.       Post-service conduct.
Decision

Date: 20091015   Location: Washington D.C.       R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall MISCONDUCT.
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 one non-judicial punishment (NJP) for violations of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey a lawful order- drinking underage) and Article 108 (Destruction of government property – a telephone used in the “IC gyro station”). The evidence of record also indicates that the Applicant was evaluated and treated by a psychologist at Naval Medical Clinic Pearl Harbor on several occasions for a history of depression (over nine months) as evidenced by crying spells, suicidal ideations, cutting himself, bed wetting, sleep problems, inability to concentrate, feelings of hopelessness, and emptiness since boot camp. The Applicant was diagnosed with m ajor depression - single episode, determined not to be mentally ill , and was recommended for expeditious separation processing. However, based on the offenses committed by the Applicant, his command administratively processed him for separation due to misconduct vice depression (per regulations, misconduct takes precedent) . The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived his rights to consult with qualified counsel and submit a written statement. However, his DD Form 214 indicates that he was separated for misconduct and assigned a separation code of HKQ, indicating that he waived his right to an administrative board. The presumption of regularity of governmental affairs was applied in the absence of an administrative separation package.

: (Nondecisional) The Applicant’s representative has requested a change in his reenlistment code from RE –4 to RE –3 for reenlistment purposes. 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 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.
Issue 2 and 3: (Decisional) ( ) . The Applicant ’s representative is seeking an upgrade to General (Under Honorable Conditions) and contends t h e Applicant’ s discharge was too harsh in light of his mental health problems and the relatively minor nature of his misconduct. The Applicant ’s representative also contends t he Applicant was not allowed to redeem himself. The Applicant presented his medical records, a Department of Veteran Affairs Rating Decision dated 11 December 2007 and service record entries for the Board’s consideration. After reviewing the available evidence of record , medical records and the Applicant’s statement, the Board determined that an upgrade was not warranted, especially in light of the offenses committed by the Applicant during the seven months that he served on active duty . The evidence of record as previously discussed indicates that the Applicant was suffering from depression, experiencing marital problems, his mother was suffering a breakdown and his father was terminally ill. However, the Board determined that the Applicant’s personal problems and medical condition did not mitigate the conduct which resulted in his discharge. Both of the offenses committed by the Applicant were considered serious offenses and could have resulted in a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. Additionally, the Board determined that the Applicant’s contention that he was not allowed to redeem himself is contrary to the opinion of the psychologist who evaluated him and recommended expeditious separation based on his manifestation of a longstanding disorder of character and behavior, which was of such severity as to render him incapable of serving in the Navy.

Issue 4: (Decisional) ( ) . The Applicant ’ representative also contends that the Applicant’ s ability to serve was impaired by his youth and immaturity contributed to and mitigated his misconduct. Based on a review of the record and evidence presented by the Applicant, the Board determined that an upgrade to Honorable wa s not warranted. The Applicant submitted a personal statement wherein he admitted to having marital problems and stress related to his fathers’ illness and that he went to bars and to a place where there was “a land of alcohol , ” destroyed government property and engaged in underaged drinking. The evidence of record as contained in the Applicant’s medical records indicates that the Applicant was alert and oriented to person, place, time and circumstances and was found fit for duty for administrative processing purposes. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.

Issue 5:(Decisional) ( ) The Applicant submitted a personal statement contend ing that he is now a man of professional stature and has license s as a n emergency medical technician and coach. He also indicated that he works hard, contributes to society in a positive manner, works out consistently, no longer drinks, and volunteers his extra time as an assistant coach for cross country and track at the high school he previously attended. The Applicant submitted a copy of his National Emergency Medical Technician certification and membership card for the NFHS Coaches Association for the Board’s consideration.

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 or completion of higher education (official transcripts); and documentation of a drug-free lifestyle. The Applicant is advised that 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.

While the Board app reciates the Applicant’s post-service efforts, t he Board determined the Applicant’s statement regarding post-service conduct with limited documentation to support the same, was not sufficient to form a basis for relief. On page 4, Item 8, i n the instructions for completion of DD Form 293, the Applicant is notified to submit evidence “which substantiate or relate directly to your issues in Item 6.” (Issues: Why an upgrade or change is requested and justification for the request). Additionally, upon receipt of the Applicant’s DD Form 293 , the NDRB mails an acceptance letter that includes the Information Concerning Review Procedures , which discusses the submission of additional documents in paragraph 3, Submission of Evidence, and in the last section on page 4, Information Pertaining to a Review Based Upon Post-Service Conduct . However, even if the Applicant could have produced additional evidence to support a review based on his post-service conduct, the Applicant should be aware that post-service conduct alone does not guarantee an upgrade.

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 Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain . 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.

 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.

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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