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NAVY | DRB | 2010_Navy | ND1000171

Original file (ND1000171.rtf) Auto-classification: Denied

ex-SN, USNR

Current Discharge and Applicant’s Request

Application Received: 20091020

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3630600 since changed to

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

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        19950124 - 19950531     Active:

Period of Service Under Review:
Date of Current Enlistment: 19950601     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19980410      Highest Rank/Rate: SN
Length of Service : Y ear ( s ) M onth ( s ) 00 D a y ( s )
Education Level:        AFQT: 33
Evaluation M arks:         Performance: NFIR         Behavior: NFIR OTA: NFIR

Awards and Decorations ( per DD 214):      NDSM

Periods of UA : 19951119-19951126 ( 7 days ) ; 19960209-19960304 (24 days - I n hands of civilian authorities (I HCA ) ) ; 19960529-19960531 ( 2 days ) ;
19971028 -19971 029 ( 1 day )

Periods of CONF : NFIR

Lost time ( per DD214 ) : 19970728-19970804 ( 7 days - reason for time lost not found in service record )

NJP : 2

- 19951101 :      [ D etails not found in record; history of NJP extracted from service record - Form NAVPERS 1070/609]

- 19951213 :      Article 86 (Absence without leave ; unauthorized absence from unit for more than 3 days, but not more than 30 days (19951119-19951126 (7 days)), terminated by surrender to military authority) .
         Awarded: Suspended:

SCM:

- 19960319 :       Art icle ( Absence without leave; unauthorized absence from unit for more than 3 days, but not more than 30 days ( 19960209-19960304 , 24 days - IHCA due to arrest by local law enforcement ) .
         Sentence : Forfeiture of Pay, Restriction for 60 days

SPCM:    C C :

Retention Warning Counseling :

- 19950830 :       For refusing to train/failing to obey lawful order(s), as evidenced by continued lack of discipline.
- 19970813 :       For unsatisfactory performance as evidenced by counseling chits addressing your unsatisfactory performance dated August 1997 (two chits), 8 August 1997 and 12 August 1997.

Administrative Corrections to the Applicant’s DD 214

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

         “ GKA ”
“ PATTERN OF MISCONDUCT ”
“ 95NOV19-95NOV26; 96FEB09-96MAR04;
96MAY29-96MAY31; 97JUL28-97AUG04 ;
97OCT28- 97OCT29 ”

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:          Rehabilitation/Treatment:                  Criminal Records:
         Personal Documentation :          Community Service:                References:
         Department of VA letter:                  Oth er Documentation:
                  Additional Statements :
         From Applicant:          From /To Representation:          From /To Congress m ember :

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 December 1997 until
14 December 1998, Article 1910-140 (3630600) , 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

Decisional issues : The Applicant contends that the in-service sexual assault and abuse and the resulting emotional and mental, physical , and emotional trauma she suffered while in recruit training directly contributed to her misconduct of record; as such, her discharge characterization was inequitable.

Decision

Date : 20 1 1 1104 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 NDRB 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 identified one decisional issue to the NDRB. The NDRB completed a thorough review of the circumstances that led to the discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety.

The Applicant’s record of service contains two NAVPERS 1070/613 retention-counseling warning s regarding h er lack of discipline and training issues at basic recruit training and for unsatisfactory performance of duties as evidenced by multiple disciplinary chits; each counseling advised the Applicant regarding possible discharge or punitive or administrative legal ramifications if s he failed to undertake corrective action. Additionally, the Applicant’s record of service included two and a summary court - martial for o f the Uniform Code of Military Justice (UCMJ) , which included multiple specifications of violating Artic le 86 - Unauthorized Absence.

Based on the o ffenses committed by the Applicant, and the pattern of misconduct established by the Applicant while in service, her command administratively processed her for separation pursuant to Article 1910-140 (Pattern of Misconduct) of the Naval Military Personnel Manual (MILPERSMAN). T he presumption of regularity in governmental affairs was applied by the NDRB in this case . T he Applicant’s record of service was very incomplete and the NDRB could not find a record of either her enlistment or her administrative discharge process . However, based on the Applicant’s statement that she was afforded an administrative discharge hearing board, the NDRB relied on the presumption of regularity that she was properly notified and was accorded her legal rights pursuant to administrative discharge processing .

(Decisional Issue) ( ) PARTIAL . The Applicant contends that the in-service sexual assault and abuse and the resulting emotional and mental, physical , and emotional trauma she suffered while in recruit training directly contributed to her misconduct of record; as such, her discharge characterization was inequitable.

Propriety - The Applicant was notified of the pending separation action and the chain of command’s recommendation that s he receive an Under Other Than Honorable Conditions characterization of service at discharge. In accordance with the Applicant ’ s personal statement, she was afforded the opportunity to appear before an A dministrative Separation Board (ASB) . Both the ASB and the Separation Authority determined that the basis for separation (Misconduct - Pattern of Misconduct) was substantiated by a preponderance of the evidence and that separation from the service was warranted. The Separation Authority further agreed with the ASB members ’ determination that the characterization of service at discharge should be Under Other Than Honorable Conditions . The NDRB determined that the Applicant’s two non-judicial punishments and summary court - martial , coupled with the NAVPERS 613 retention counseling-warning s , properly satisfied the requirements established for separation based on a demonstrated pattern of misconduct pursuant to Article 1910-140 of the MILPERSMAN. As such, the NDRB determined there was no impropriety because of an error of fact, law, procedure, or discretion with the discharge.

Equity - T he Applicant’s record of service was very incomplete and the NDRB could find no legal documentation to support the Applicant’s allegations of sexual assault or abuse. However, a review of her record of assignments document s an extensive deviation to the normal entry level training pipeline and includes a two - month period of in-patient hospitalization in the Portsmouth Naval Hospital . A detailed review of the Applicant’s in-service medical record s and record of mental health treatment also corroborate the Applicant’s testimony. However, t he evidence of record did not show that the Applicant was either not responsible for her conduct or that s he should not be held accountable for h er actions. Based on a review of the evidence available to the NDRB , coupled with the circumstances unique to this case and the Applicant’s extensive testimony , the NDRB determined that the unique circumstances of the Applicant’s separation did warrant consideration in mitigation of her misconduct and that the characterization of service at discharge was inequitable.

Characterization of service at discharge is founded on the recognition of a Sailor’s performance and conduct, and is not necessarily dependent upon the narrative reason for separation. When the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under Honorable conditions. A General (Under Honorable Conditions) discharge is appropriate if the member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance outweigh the positive aspects of the member’s military record. An Under Other Than Honorable Conditions discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service . The NDRB determined that the Applicant’s conduct, which forms the primary basis for determining the character of service at discharge, reflected honest and faithful service, but that significant negative aspects of the Applicant’s conduct and performance of duties did outweigh the positive aspects of h er military record. By a vote of 5-0 , the NDRB determined that the Applicant’s overall service warranted a General (Under Honorable Conditions) characterization of service at discharge. Partial relief granted. Full relief to Honorable was not granted because of the repetitive misconduct and the determination that the Applicant bears some responsibility for her actions.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, and medical record entries, and discharge process, the NDRB determined that 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 h er discharge. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews 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 | 2010_Navy | ND1000171

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