Upgrade.Vet

NAVY | DRB | 2009_Navy | ND0901587

Original file (ND0901587.rtf) Auto-classification: Denied

ex-ITSN, USN

Current Discharge and Applicant’s Request

Application Received: 20090515

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)        19990818 - 19991101     Active:

Period of Service Under Review:
Date of Current Enlistment: 19991102     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20030718      Highest Rank/Rate: IT3
Length of Service : Y ear ( s ) M onth ( s ) 17 D a y ( s )
Education Level:        AFQT: 53
Evaluation M arks:         Performance: 3.0 ( 4 )      Behavior: 3.0 ( 4 )        OTA: 3.00
Awards and Decorations ( per DD 214):      NMCAM

Periods of CONF : NONE Discharge in Absentia
Lost time per DD214: 20030307-20030310, 3 days; 20030310-20030311, 1 day

NJP :

- 20000419 :       Article 92 (Wrongfully consuming an alcoholic beverage while under the age of 21)
         Article 134 (Drunk and disorderly)
         Awarded : Susp ended:

- 20021107 :       Article 86 (Unauthorized absence)
         Article 92 (Failure to obey a lawful order)
         Awarded : Susp ended:

S CM : SPCM:

C C :

Retention Warning Counseling : NFIR

Administrative Corrections to the Applicant’s DD 214

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

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “ SEA SERVICE DEPLOYMENT RIBBON, NATIONAL DEFENSE SERVICE MEDAL , NA VY AND MARINE CORPS ACHIEVEMENT MEDAL ”

         “ GENERAL (UNDER HONORABLE CONDITIONS) ”

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), re-issued October 2002, effective 22 August 2002 until 25 January 2004, 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. Wants personality disorder removed from her records.
2. Record of service was good despite personal issues and constant harassment by her chief petty officer.

Decision

Date: 20 10 0409 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 two nonjudicial punishments (NJPs) f or violations o f the Uniform Code of Mil itary Justice (UCMJ): Article 86 ( Absence without leave, 1 specification, duration not found in record), Article 92 (Failure to obey lawful order or regulation, 2 specifications: underage drinking & other not found in record), Article 134 (Drunk and disorderly, 1 specification). The Applicant also had two other Article 86 violations (3 days and 1 day) in March 2003 and was discharged in absentia. Based on the offenses committed by the Applicant, her command administratively processed her for separation. The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived her rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority (GCMA) review .

Issue 1 : ( Nond ecisional) The Applicant wants any reference of personality disorder removed from her records. She stated she didn’t understand how one appointment could lead to a discovery of personality disorder and she never signed any consent for a personality test to be done. One of her references thinks she was discharged for a personality disorder. The NDRB does not have the authority to remove or delete information from a member’s medical or service records. From her Department of Veterans Affairs (VA) medical documentation, the Applicant was diagnosed with a personality disorder while in the military but no other specific information was found. The USS BELLEAU WOOD (LHA 3) commanding officer stated in his letter of 18 July 2003, that the member had been processed for administrative separation due to personality disorder, but listed the narrative reason for separation as pattern of misconduct. For the information of the Applicant, members may be processed for separation based on a mental health professional's clinical diagnosis of a personality disorder when the disorder is so severe that one's ability to function effectively and perform their duties is significantly impaired, and the individual poses a threat to safety or well being of themselves or others. Separation for personality disorder is not appropriate when separation is warranted for any other reason (e.g., member meets minimum criteria for misconduct processing). The record of evidence reflects the Applicant was separated by reason of misconduct – pattern of misconduct, not personality disorder.

The NDRB noted in the VA medical documentation, there were references the Applicant screened positive on a post-traumatic stress disorder (PTSD) test, and was recommended for a follow-up mental health evaluation. The NDRB did not have a copy of the follow-up mental health evaluation, nor did the Applicant provide it, and could not determine if PTSD might have contributed to the Applicant’s conduct.

Issue 2 : (Decisional) ( ) . The Applicant contends her record of service was good despite personal issues and constant harassment by her chief petty officer. The Applicant stated she focused on the positive things in her career despite her older brother was killed in a motorcycle accident. From her letters of references, there were several other family tragedies. The Applicant stated she always did what she was told even if she did not agree with it. Based on her evaluation reports, the NDRB determined the Applicant was an average sailor but was awarded the Navy and Marine Corps Achievement Medal upon leaving the Afloat Training Group Pacific . The Applicant did have two NJPs, but there was no explanation in her service record, nor did the Applicant provide any, of her Article 86 violations in March 2003 and why she was discharged in absentia. Therefore, the NDRB applied the presumption of regularity of governmental affairs in the absence of her administrative separation package, and determined she met the requirement for separation by reason of misconduct – pattern of misconduct and the awarded characterization of service was warranted. R elief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, and medical 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 her 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 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 | ND0901587

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