Upgrade.Vet

NAVY | DRB | 2010_Navy | ND1000211

Original file (ND1000211.rtf) Auto-classification: Denied

ex-RMSR, USN

Current Discharge and Applicant’s Request

Application Received: 20091026

Characterization of Service Received: (per NDRB decision)

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)        19910626 - 19920224     Active:

Period of Service Under Review:
Date of Current Enlistment: 19920225     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19960926      Highest Rank/Rate: RM3
Length of Service : Y ear ( s ) M onth ( s ) 05 D a y ( s )
Education Level:        AFQT: 62
Evaluation M arks:         Performance: 3.7 ( 3 )      Behavior: 3.8 ( 3 )        OTA: 3.86

Awards and Decorations ( per DD 214):      NONE

NJP : S CM :

SPCM:

- 19950203 :       Art icle (UA) , 2 Specifications
         Specification 1: UA 19941101-19941215, 41 day, apprehended
         Specification 2: UA 19941215-19941222, 7 days , surrendered
         Article 112a (Drug use, wrongful use of marijuana)
         Article 134 (Breaking rest riction )
         Sentence : (19950203-19950308 33, days) FOP

C C : Retention Warning Counseling :

NDRB Documentary Review Conducted (date):        20081106
NDRB Documentary Review Docket Number:   ND0-801660
NDRB Documentary Review Findings:                 Discharge changed to Under Other Than Honorable Conditions.

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 :

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

Applicant’s Issues

1. Medical conditions were mitigating factors.
2. Post-service warrants consideration.

Decision

Date: 20 10 1117 Location: Washington D.C . R epresentation : Disabled American
Veterans

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 Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. With respect to a discharge adjudged by a court-martial case, 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. In response to the Applicant's clemency request, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. Although the Applicant’s characterization was upgraded to Under Other Than Honorable Conditions at his document review, his case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The Applicant’s record of service included one special court -martial (SPCM) for violations o f the Uniform Code of Mil itary Justice (UCMJ): Article 86 (Absence without leave, 7 days-surrendered; more than 30 days: 41 days-apprehended), Article 112a (Wrongful use of a controlled substance, marijuana), and Article 134 (Breaking restriction). The Applicant was also charged with violation of Article 87 (Missing movement), but he pled not guilty and the charge was withdrawn. At the SPCM, the Applicant pled and was found guilty of the UCMJ violations and sentenced to four months confinement, forfeiture of $500.00 pay per month for four months, reduction to pay grade E-1, and a Bad Conduct discharge.

Issue 1 : (Decisional) ( ) . The Applicant contends his medical conditions were factors in his misconduct. The Applicant provided evidence that he has been diagnosed and treated for hypo-manic bipolar disorder , paranoia, agoraphobia, panic disorder, personality disorder with antisocial and narcissistic features, attention deficit disorder, depression, glaucoma, alcohol dependence, cannabis dependence, opioid dependence , and back pain. The only relevant in-service medical conditions found were personality disorder not otherwise specified with antisocial and narcissistic features prior to his confinement and a lower - back injury sustained after lifting weights. The NDRB noted the Applicant required a pre-service drug waiver for using marijuana six times prior to enlisting. The Applicant testified that he also used cocaine prior to enlisting but did not reveal that on his enlistment documentation. Documentation indicated the Applicant s tarted drinking alcohol daily at age 15, smoking marijuana daily at age 15, using cocaine regularly twice a week at age 16, and using LSD regularly twice a week at age 17. Since the Applicant had no documented misconduct or counseling warnings prior to his SPCM , had significant substance abuse prior to entry, and most of his mental health issues were diagnosed post-service, t he NDRB determined the Applicant’s medical conditions were not mitigating factors in his misconduct and that his conduct, which forms the primary basis for determining the character of his service, reflected a significant departure from the condu ct expected of a service member. Relief denied.

Issue 2: (Decisional) ( ) . The Applicant contends his post-service conduct warrants consideration for an upgrade in his characterization of service. The NDRB considers 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. The Applicant provided letters of reference and documentation regarding his employment, education and training, health and medical records, substance abuse treatment, and community service. After a careful review of the Applicant's post-service documentation and official service and medical records, and taking into consideration his testimony, and the facts and circumstance s unique to this case, the NDRB, by unanimous vote, determined the quality of the Applicant’s service generally did not meet the standard of acceptab le conduct and performance for N aval personnel to warrant an upgrade in characterization of service.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, and medial 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 .

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective 5 March 1993 until 2 October 1996, Article 3640420, DISCHARGE OF ENLISTED PERSONNEL ADJUDGED BY SENTENCE OF COURT-MARTIAL.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications .

C. 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 .

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 | ND1000211

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