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NAVY | DRB | 2009_Navy | ND0901510
Original file (ND0901510.rtf) Auto-classification: Denied

ex-STGSN, USN
Current Discharge and Applicant’s Request
Application Received: 20090506
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)        20041207 - 20050927     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20050928     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20080818      Highest Rank/Rate: STG3
Length of Service : Y ear ( s ) M onth ( s ) 22 D a y ( s )
Education Level:        AFQT: 81
Evaluation M arks:         Performance: 2.00 ( 2 )     Behavior: 2.00 ( 2 )       OTA: 2.09

Awards and Decorations ( per DD 214):     

Periods of C ONF :

NJP :
- 20080417 :       Art icle 86 (UA failure to go to appointed place of duty , 20080317, 20080319, 20080407 ) , 3 specifications
         Awarded : Susp ended :

- 20080528 :      Article 86 (UA, 20080504, 20080505, 20080519, 20080520 ) , 4 specifications
         Article 115 (Malingering )
         Awarded: (3 days) Suspended:

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 1910-140, 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.       Discharge inequitable because command ignored his mental issues.
2.       In-service work performance.

Decision

Date: 20 10 0204             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 evidence submitted by the Applicant . The Applicant’s record of service included two non-judicial punishments (NJPs) for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Unauthorized absences (UAs) – 3 specifications of failure to go to appointed place of duty USS VELLA GULF 72 and 4 specific ation s of restricted muster ) and Article 115 ( Malingering- cut his arm with a knife for the purpose of avoiding duty). Per the Applicant’s medical record of 30 July 2008 , he was hospitalized at Navy Medical Center, Portsmouth from 28-30 July 2008 and evaluated by psychiatrist who noted the following : 1) the Applicant self - referred to the emergency room the day he was to return to his command, 2) complained of suicidal ideations, alcohol misuse and a history of self-mutilation, 3) indicated that he did not want to return to the ship and continued to suggest self-harm if returned, 4) on the day of his discharge the providers learned he was being administratively processed by his command for a pattern of misconduct, 5) he was diagnosed as having an adjustment disorder with depressed mood, narcissistic personality and recommended for expeditious administrative separation after it was determined that he was a threat to himself and others based on his threats of self harm , and 6) it was determined that the Applicant was fit for duty and that there were no psychiatric contraindications for administrative or legal actions . Based on the offenses committed by the Applicant, command administratively processed for separation due to a pattern of misconduct. Upon receiving notice of process ing for a dministrative s eparation, the Applicant elected right s to consult with qualified counsel, submit a written statement, and request a general court-martial conve n ing authority review .

: (Decisional) ( ) . The Applicant is seeking an upgrade to Honorable based on his in-service performance and conten d s his discharge was inequitable because the command ignored his request for assistance with his “mental troubles.” The Applicant also submitted a copy of a n undated letter he had written to his commanding officer requesting to be discharged based on a personality disorder as evidenced by his inability to sleep, depression, self mutilation and other symptoms he was experiencing and a complaint that the chain of command had fail ed to respond to his complaints.

Pursuant to Military Personnel Manu a l 1910-122, members may be processed for separation based on a clinical diagnosis of a personality disorder if the disorder is so severe that their ability to function in a Navy environment is significantly impaired or they are unable to perform their duties or pose a threat to themselves or others. However, separation for personality disorder is not appropriate if separation is warranted for other reasons such as misconduct. In the Applicant’s case, as noted supra , he was already being processed for a pattern of misconduct when he was evaluated by a psychiatrist and recommended for expeditious administrative separation due to a personality disorder. The evidence of record as previously discussed , indicates the Applicant had one NJP on 17 April 2008 and second one on 28 May 2008. There was no retention warning/counseling in the record . In the absence of a complete service record and administrative separation package the Board presumed regularity of government affair s. Based on a p resumption of regularity, review of the evidence of record and evidence presented by the Applicant, the Board determined that the commanding officer acted in accordance with regulation in processing the member for a pattern of misconduct.

Additionally, there is no evidence in the record or provided by the Applicant to prove that prior to being processed for administrative separation he informed his commanding officer of his personal problems, mental health issues, and the chain of command’s failure to assist him and did not receive the assistance or relief sought. Furthermore , the Applicant makes no mention of, nor provides documented proof that he attempted to use any one of the numerous family support programs sponsored by or for military service members. Additionally, the Board determined that the Applicant’s in-service performance was insufficient to warrant an upgrade taking into consideration his performance evaluations and the nature and frequency of his 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 .

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 Disable d 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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