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NAVY | DRB | 2009_Navy | ND0901773
Original file (ND0901773.rtf) Auto-classification: Denied

ex-MSSR, USN
Current Discharge and Applicant’s Request
Application Received: 20090610
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3630600 [PATTERN OF MISCONDUCT]

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

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        19890609 - 19890613     Active:   19890614 - 19930610 HON

Period of Service Under Review:
Date of Current Enlistment: 19930611     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19950210      Highest Rank/Rate: MS3
Length of Service : Y ear ( s ) M onth ( s ) 30 D a y ( s )
Education Level:        AFQT: 54
Evaluation M arks:         Performance: 2.7 ( 5 )      Behavior: 2.8 ( 5 )        OTA: 3.24

Awards and Decorations ( per DD 214):     

Period of UA /CONF : UA: 19940904-1994090 7 , 3 days ; CONF: NONE

NJP :

- 19940719 :       Article 86 ( Go from appointed place of duty )
         Article 91 (Disrespect ful in language)
         Awarded : Susp ended:

- 19941006 :       Article 86 (UA – 3 days )
         Awarded : Susp ended:

- 19941121 :       Article 91 (Disrespectful in language toward a second class petty officer )
         Awarded : Susp ended:


S CM :    SPCM:    C C :

Retention Warning Counseling :

- 19940927 :       For violation of article 86, absent without leave.

- 19941006 :       For violation of article 86, absent without leave.

Administrative Corrections to the Applicant’s DD 214

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

         “ 940904-940907 (3) ”
         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 890614 UNTIL 930610 ”

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 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 .



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

Applicant’s Issues

 1.        False reports made about her – never showed disrespect .
2.       Got out of the Navy for health reasons.
3 .       Broken down by chain and admitted to bisexuality .

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 NAVPERS 1070/613 (Page 13) warnings and three for violations o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Unathorized absences (UA) – 2 specifications ) and Article 91 ( Disrespectful in language toward a superior petty officer - 2 specific ations ) . The record of evidence also reflects that during an interview conducted on 14 October 1994, the Applicant admitted to being a homosexual , engaging in homosexual activity and indicated that she could no longer work with heterosexual persons. However, the Applicant provided a statement on her DD Form 293 indicating that she told her captain that she was bisexual, not homosexual. On 21 June 1994, the Applicant underwent a psychiatric evaluation , and it was determined that she did not have a personal ity disorder and deemed fit for full duty. Based on the offenses committed by the Applicant and her admission to engaging in homosexual conduct , her command administratively processed her for separation . When notified of administrative separation processing , the Applicant elected her rights to consult with a qualified counsel and submit a written statement ; she waived her right to an administrative board .

: (Decisional) ( ) . The Applicant is seeking a change in the narrative reason (unspecified) and contends that false reports were made about her and that she never slammed down a tray, sw u ng a mop , u se d profanities , or showed disrespect toward a superior officer. However, the Applicant does admit to refusing to obey an order of “the restriction watch” to clean . The Applicant also contends that she got out of the Navy for health reasons. Based on a review of the evidence of record and documents provided by the Applicant , the NDRB determined there was sufficient evidence to support a administrative discharge due to a pattern of misconduct as evidenced by the Applicant’s three NJPs and two counseling warnings as previously noted. Additionally, the Applicant’s record contains sufficient evidence that demonstrates that she spoke and acted in a manner that was disrespectful while in the performance of her official duties and was awarded NJP twice for disrespectful behavior to a petty officer . Furthermore , the Applicant’s record reflects that she did not have a personality disorder and was discharged due to misconduct and not due to a medical condition. Based on the foregoing evidence of record , the NDRB has determined that the Applicant’s contentions are without merit and relief is not warranted.

: (Decisional) ( ) . The Applicant also contends that while on restriction she was allowed to see the chaplain and told him that she needed to get out of the Navy because of all of the things that were happening to her. The Applicant contends that she was broken down to the point that she went to the captain (accompanied by the chaplain) and admitted to being bisexual . There is no evidence in the record, nor has the Applicant produced any evidence , to prove that she was coerced by someone in her chain of command into admitting to homosexuality . The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. However, even if the Applicant could show wrongdoing by her chain of command , such behavior would neither amount to a justification nor to a defense for the Applicant’s own misconduct. The evidence of record reflects that the Applicant went to NJP three times while on active duty within a two - year period and did not respond to counseling warning s . Taking into consideration the frequency and seriousness of the offenses committed by the Applicant and the lack of mitigating circumstances, the NDRB has determined that an upgrade is not warranted and the discharge was warranted .

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 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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