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NAVY | DRB | 2009_Navy | ND0901342
Original file (ND0901342.rtf) Auto-classification: Denied

ex-SA, USN
Current Discharge and Applicant’s Request
Application Received: 20090421
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3630600

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

Summary of Service

Prior Service:
 Inactive:         US N R (DEP)        19920518 - 19920824     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 19920825     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19940913      Highest Rank/Rate: SN
Length of Service : Y ear ( s ) M onth ( s ) 20 D a y ( s )
Education Level:        AFQT: 89
Evaluation M arks:         Performance: 3.2 ( 2 )      Behavior: 3.3 ( 2 )        OTA: 3.3

Awards and Decorations ( per DD 214):     

Periods of UA :   19940815 – 19940 822, 7 days                C ONF :

NJP :

- 19930429 :      Article (Absence without leave), 2 specifications
         Specification 1: Fail to go to appointed place of duty , mandatory study 19930401 – 19930412, 11 days.
         Specification 2: Fail to go to appointed place of duty, duty section muster 19930402 – 19930415, 13 days.
          Article (Failure to obey order or regulation), 2 specifications
         Specification 1: Fail to obey lawful order 19930301 – 19930326, 25 days.
          Specification 2: Dereliction of duty 19930402 – 19930415, 13 days.
          Awarded: Suspended:

- 19940122 :      Article (Failure to obey order or regulation – underage drinking in the August to November 1993 timeframe)
         Awarded: Suspended:

- 19940620 :      Article (Absence without leave on 19940601 – 19940614, 13 days)
         Awarded: Suspended:

S CM :

SPCM:

C C :






Retention Warning Counseling:

- 19930429 :      For violation of articl es 86, 2 specifications, and 92, 2 specifications, CO’s NJP held this date.

- 19940126 :      For violation of article 92 that resulted in CO’s NJP on 19940122, SVM warned that continued misconduct could reflect Pattern of Misconduct as described in MILPERSMAN 3630600.

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 :   

NDRB Documentary Review Conducted (date): Not applicable.      
NDRB Documentary Review Docket Number: Not applicable.         
ND RB Documentary Review Findings: Not applicable.        


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

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 22 July 1994 until 2 October 1996, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

A. Naval Military Personnel Manual, (NAVPERS 15560C, Change 9, effective 22 July 1994 until 2 October 1996), Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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 .

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. Navy misdiagnosis of multiple sclerosis.
2. Post-service conduct warrants consideration.
Decision

Date: 2010 0614    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 two NAVPERS 1070/613 (Page 13) warnings, and three nonjudicial punishments (NJPs) for violations o f the Uniform Code of Mili tary Justice (UCMJ): Article 86 (Failure to go to appointed place of duty, 2 specifications: mandatory study-11x, duty section muster-13x), Article 86 (Absence without leave , 13 days, surrendered), Article 92 ( Failure to obey order or regulation, dereliction of duty, and underage drinking). The Applicant also had another violation of UCMJ Article 86 (Absence without leave, 7 days, surrendered), but the command did not adjudicate it. Based on the offens es committed by the Applicant, his command administratively processed him for separation. When notified of administrative separation processing using the administrative board procedure, the Applicant waived his rights to submit a written statement and request an administrative board , but elected to consult with a qualified counsel.
Issue 1: (Decisional) ( ) . The Applicant contends the Navy misdiagnosed his multiple sclerosis. The Applicant provided a letter from the director of a multiple sclerosis (MS) center in Massachusetts dated 22 October 2009, who stated the Applicant was diagnosed with MS on 13 September 1995 , had started using a cane in 1998 and by 2007, was using a walker. The Applicant is now confined to a wheelchair. The NDRB found no evidence in the Applicant’s in-service medical record, nor did the Applicant provide any, indicating his symptoms of MS were clearly evident while he was in the Navy. In his Report of Medical Examination form dated 8 August 1994, the clinical evaluation section, blocks 18 to 42, all indicated normal. The NDRB determined the Applicant’s MS was not a mitigating factor in his misconduct.

Issue 2 : (Decisional) ( ) PARTIAL . The Applicant contends his post-service conduct warrants considerat ion for an upgrade to Honorable. The NDRB considers o u tstanding 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 un der review. The Applicant provided documentation that included post-service medical diagnosis, financial stability, marriage and birth certificates. The Applicant should be aware submission of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the NDRB on a case-by-case basis. After a careful review of the Applicant's post-service documentation and official service record, and taking into consideration his testimony, the testimony of his witness, and the facts and circumstances unique to this case, the NDRB determined the quality of the Applicant’s service generally did not meet the standard of acceptable conduct and performance for naval personnel to warrant an Honorable characterization. However, the NDRB determined the Applicant’s service had been honest and faithful but significant negative aspects of his conduct or performance outweigh ed positive aspects of his military record and partial relief is warranted based on equitable grounds. By majority rule, the NDRB voted to upgrade the discharge characterization to General (Under Honorable Conditions), but voted unanimously not to change the narrative reason for separation.

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 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 .


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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