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NAVY | DRB | 2009_Navy | ND0902151
Original file (ND0902151.rtf) Auto-classification: Denied

ex-AR, USN
Current Discharge and Applicant’s Request
Application Received: 20090730
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)        19990709 - 19990718     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19990719     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20001030      Highest Rank/Rate: AA
Length of Service : Y ear ( s ) M onth ( s ) 12 D a y ( s )
Education Level:        AFQT: 40
Evaluation M arks:         Performance: NFIR        Behavior: NFIR   OTA: NFIR

Awards and Decorations ( per DD 214):      NONE

P eriods of UA /C ONF : U A: 2 000 0 501- 2 000 0 601 (31 days) / CONF: 20000601-20000613 (13 days) [Based on medical record report of 10 August 2000.]

NJP :

- 20001010 :       NFIR [Extracted from NAVPERS 1070/604, Awards]

S CM :

- 20000720 :       NFIR [Extracted from NAVPERS 1070/604, Awards]

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 :   


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

Applicant’s Issues

 1. Mental condition mitigates his misconduct.

Decision

Date: 20 1 00422             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall MISCONDUCT .
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 was very incomplete, but the NDRB found evidence the Applicant’s record of service included one nonjudicial punishment (NJP) and one summary court-martial . Specific charges were unknown. The Applicant did have one violation of th e Uniform Code of Mil itary Justice (UCMJ): Article 8 6 ( Absence without leave more than 30 days, 1 specification: 31 days, surrendered). The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived his rights to consult with a qualified counsel, submit a written statement, and request an administrative board .

 Issue 1: (Decisional) ( ) . The Applicant contends his mental condition mitigates his misconduct. He provided post-service documentation that he has been diagnosed with intermittent explosive disorder, which according to his doctor, is a chronic disorder that does not go into remission, there is no effective treatment, and he would not be cured of this disorder. The Applicant stated he had gone absent without leave because his girlfriend had lost her baby, but the NDRB found no documentation, nor did the Applicant provide any other than personal statements , to support this. The NDRB reviewed the Applicant’s medical record and found he was diagnosed with adjustment disorder with depressed mood, not otherwise specified (NOS) on 7 April 2000 , and recommended for a psychiatry consult; the Applicant had stated he wouldn’t be depressed if he had a different job.

On 26 April 2000, a clinical psychologist at the branch medical clinic at Naval Air Station Oceana, Virginia Beach, Virginia, diagno sed the Applicant with Axis I: a djustment disorder with mixed distur bance of emotions and conduct, o ccupational problem, and r elational problem NOS; and Axis II: p ersonality disorder NOS with antisocial and borderline features, severe, principal diagnosis. The psychologist stated the Applicant hated the Navy and would do whatever he needs to do to get out.
The psychol ogist reported, “ the member failed to disclose his mental health treatment history, which existed prior to enlistment, on his enlistment physical (SF93) dated 7 July 1999.” Additionally, the psychologist’s notes state “h e required a waiver to enlist due to daily use of mar ijuana while in high school.” The NDRB noted the Applicant admitted in his enlistment screening th at he only used marijuana twice . Such extensive marijuana use would have demanded a waiver in order for the Applicnt to enlist. The board felt the Applicant was deliberate in his attempt to conceal these material facts. The psychologist considered the Applicant to be fully responsible for himself and his actions, but most strongly recommended expeditious administrative separation on the basis of unsuitability. However, four days after the doctor’s recommendation for separation, the Applicant went absent without leave for 31 days. Per his chronological record of medical care dated 10 August 2000, the Applicant was confined in the Oceana and ship’ s brig for 13 days after his return.

In the 10 August 2000 medical record, the doctor stated the Applicant “has disliked [his] job from [the] beginning, the work is too hard and cannot comply [with] being ordered around; unable to put up [with] being treated lowly and having no “rights” as a worker.” “Claims that he cannot handle life in the Navy and wants out, ever since October ’99.”

A fter a careful review of the Applicant's official service and medical records, post-service documentation, and taking into consideration the facts and cir cumstances unique to this case , the NDRB determined the Applicant’s mental condition was not a significant mitigating factor in his misconduct . The NDRB, by majority rule, voted not to upgrade the characterization of service or change the narrative reason f or separation.

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 re ason for separation shall remain .

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his discharge. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct .

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 30, effective 30 August 2000 until 24 January 2001,
Article 1910-142 SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

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 .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 86.


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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