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NAVY | DRB | 2009_Navy | ND0902305
Original file (ND0902305.rtf) Auto-classification: Denied

ex-CSSA, USN
Current Discharge and Applicant’s Request
Application Received: 20090818
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)        20010208 - 20010227     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20010228     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20040413      Highest Rank/Rate: MS3
Length of Service : Y ear ( s ) M onth ( s ) 16 D a y ( s )
Education Level:        AFQT: 33
Evaluation M arks:         Performance: 4.0 ( 1 )      Behavior: 2.0 ( 1 )        OTA: 3.43

Awards and Decorations ( per DD 214):     

Periods of UA /C ONF :

NJP :

- 20010727 :      Article (Larceny of property other than military , pair of Nike shoes valued at $100 or less)
         Awarded: Suspended:

- 20031218 :      Article (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer – toward a Master Chief Petty Officer)
         Awarded: Suspended:

- 20040313 :      Article (Assault – consummated by a battery by striking another SVM in the leg numerous times with an open hand)
         Awarded: Suspended:

S CM :

SPCM:

C C :

Retention Warning Counseling:

- 20010727 :      For stealing from base exchange, Lackland AFB, TX, CO’s NJP held this date.

NDRB Documentary Review Conducted (date):        20050818
NDRB Documentary Review Docket Number:   ND05-00858
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.

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 :   
Applicant Testified:
Applicant Available for Questions:
Witnesses:
Observers:

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 25 April 2005, Article 1910-142, SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.
A. Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 25 April 2005, 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       ,       .

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 s 91 , 121, and 128.

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

Applicant’s Issues
1. In-service performance warrants consideration.
 2. Mental health diagnosis of schizophrenia and possible post-traumatic stress disorder (PTSD) were mitigating factors.
3. Post-service conduct warrants consideration.
Decision
Date: 2010 0915             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 governmental 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 one NAVPERS 1070/613 (Page 13) warning and three nonjudicial punishments (NJPs) for violations o f the Uniform Code of Military Justice (UCMJ): Article 91 (Insubordinate conduct toward a Master Chief Petty Officer ), Article 121 (Larceny and wrongful appropriation of property other than military, pair of Nike shoes ), and Article 128 (Assault consummated by battery by striking another service member with an open hand in the leg numerous times). Based on the offenses , his command administratively processed him for separation. When notified of administrative separation using the administrative board procedure, 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 in-service performance warrants consideration for an upgrade in characterization. Prior to his last two NJPs, the Applicant received a favorable evaluation report from his command (his individual trait average was 3.43, but he was rated 2.0 Progressing in M ilitary B earing / C haracter) . After his third NJP, the commanding officer decided to administratively separate the Applicant , because he “has been nothing but an administrative burden to his department, command, and the Navy. He has been given numerous chances to turn himself around during his naval career and has failed to do so.” T he Applicant’s command could have pursued a punitive discharge but opted instead for the more lenient administrative discharge. Based on the Applicant’s record of service, the NDRB determined an upgrade would be inappropriate.

 Issue 2: (Decisional) ( ) . The Applicant contends his mental health diagnosis of schizophrenia and possible PTSD were mitigating factors in his misconduct. The Applicant failed to provide any documentation of his diagnosis. He did provide his patient discharge instructions from the University of Texas Harris County Psychiatric Center that stated he was admitted for psychosis and depressed mood and given Risperdal and Depakote, which are used to treat schizophrenia and bipolar disorder, respectively. The NDRB found no evidence in the Applicant’s in-service medical record or the commanding officer’s separation letter of his being diagnosed with any clinical syndromes, developmental disorders , personality disorders , or PTSD . Based on the lack of medical documentation, the NDRB determined the Applicant’s schizophrenia and possible PTSD were not mitigating factors at the time of discharge. Relief denied.

Issue 3: (Decisional) ( ) . The Applicant contends his p ost-service conduct warrants consideration. Besides the Applicant’s testimony of community service, being unemployed but having an automobile mobile detailing business, and helping raise one of his sons, he failed to provide any post-service documentary evidence to support this issue. The Applicant’s statements alone, without sufficient documentary evidence, are not enough to form a basis of relief. The Applicant c ould have provided documentation that could have included but not limited to: letters of personal reference s, employment record s , certification of non-involvement with civil authorities , evidence of financial stability (mortgage or rental history, credit score, credit card payments) , college transcripts , and documentation of community or church service. However, even if the Applicant could have produced additional evidence to support a review based on his post-service conduct, post-service conduct alone does not guarantee an upgrade.

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 .

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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