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NAVY | DRB | 2009_Navy | ND0901455
Original file (ND0901455.rtf) Auto-classification: Denied

ex-CSSN, USN
Current Discharge and Applicant’s Request
Application Received: 20090430
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:        USNR (DEP)       20021206 - 20030818     Active: 

Period of Service Under Review:
 Date of Current Enlistment: 20030819      Age at Enlistment:
Period of Enlistment : Years Extension
Date of Discharge: 20080118       Highest Rank/Rate: CSSN
Length of Service: Year(s) Month(s) 00 D ay(s)
Education Level:         AFQT: 64
Evaluation Marks:        Performance: 3.0 ( 1 )     Behavior: 3.0 ( 1 )        OTA: 3.16 (2)

Awards and Decorations (per DD 214):     Pistol

Periods of UA/CONF:

NJP:
- 20050722 :      Article 86 ( Absence without leave UA 20050719 – 20050720, 1 day)
         Article 9 2 (Failure to obey order or regulation – other lawful order )
         Awarded: Suspended:

SCM:

SPCM:

CC:

Retention Warning Counseling:


Administrative Corrections to the Applicant’s DD 214

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

         “20050719 – 20050720 (1)”

The NDRB will recommend to the Commander, 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 /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 19 May 2008, 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. The Applicant seeks VA benefits.      
2. The Applicant claims he was dealing with mental health issues at the time of separation.      

Decision

Date : 20 10 04 15 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 g overnment al affairs unless there is substantial credible evidence to rebut the presumption, to include eviden ce submitted by the Applicant. T he Board did complete a thorough review of the circumstances which led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propri ety. The Applicant’s record of service include d nonjudicial punishment (NJP) for o f the Uniform Code of Military Justice (UCMJ): Article 86 (Unauthorized absence) and Article 92 (Failure to obey an order or regulation) . A ddition ally , one of the Applicant’s evaluations stated “SN Paris has had multiple driving infractions with court appearances resulting in the suspension of his driver’s license, jail time and numerous fines.” Due to the fact that the NDRB was unable to retrieve the Applicant’s d ischarge package, the NDRB opine d that the one NJP and the civilian offenses met the prerequisites for pattern of misconduct. Based on the offenses committed by the Applicant, command administratively processed for separation. As mentioned above, t he NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board or a General Court-Martial Co nvening Authority (GCMA) review. The NDRB presumes that the command acted properly with regards to the Applicant’s discharge.

: (Nondecisional) The Applicant seeks VA 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.
: (Decisional) ( ) . The Applicant contends he was dealing with mental health issues at the time of separation. Review of the Applicant’s medical records reveals he was seen by mental health staff nu merous times from March 2005 until his separation. During a March 2005 a ssessment, the Applicant revealed a prior attempt at suicide at age 16 and that he had been treated for depression. At the time of his enlistment, t he Applicant did not disclose this information on his medical history form . During the same assessment, the psychologist counseled him for malingering and acknowledged that he was immature. However , t h e Applicant was found psychologically fit for duty and responsible for his actions. I n September 2006, he was diagnosed with a major depression disorder and was treated with medication and counseling . Due to his mental health situation, the Applicant was no longer physically qualified to remai n on submarine duty and it was recommended that he be transferred to a surface ship. Due to his depression, t he Applicant was assigned to limited duty from September 2006 to August 2007. Additionally , he was diagnosed with anxiety disorder (not otherwise specified) and continued on prescribed medication. T o ensure a smooth cross rate and transition to the surface fleet, the medical staff had authorized him two additional months of limited duty . In August 2007, t he medical sta ff stated his anxiety has improved and he was fit for full duty .

T he Applicant makes references to other injuries incurred while he served in the Navy. These injuries ranged from a knee injury du ring a biking accident; head aches from a snowboarding accident ; to cutting his finger while preparing food ; hurting his back moving objects ; and hitting his head while on the ship. He is seeking veteran benefits as a result of these injuries. This petition is addressed in “Issue 1” above. After careful review of the Applicant’s medical and service records, t he NDRB determined that the Applicant’s mental health issues , which were addressed during the last two and half years of his enlistment , were not mitigating factor s in his misconduct . Although he may have not been fit for full duty during his entire enlistment due to mental health issues, military mental health professionals assess he was responsible for his own actions that eventually led to h is involuntarily separation from the Navy. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, medical and 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 . 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 Additio nal Reviews, Service Benefits 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 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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