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NAVY | DRB | 2010_Navy | ND1000652
Original file (ND1000652.rtf) Auto-classification: Denied

ex-ATAR, USN
Current Discharge and Applicant’s Request
Application Received: 20091229
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)        200 00526 - 20001016     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20001017     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20040923      Highest Rank/Rate: AEAN
Length of Service : Y ear ( s ) M onth ( s ) 08 D a y ( s )
Education Level:        AFQT: 63
Evaluation M arks:         Performance: 4.0 ( 1 )      Behavior: 4.0 ( 1 )        OTA: 3.33 (1)

Awards and Decorations ( per DD 214):      NONE

Periods of UA /C ONF : PRETRIAL CONF : 20030527 - 20030724 (59 days)        CONF : 20030725 - 20031026 (94 days)

NJP :     S CM :

SPCM:

- 20030725 :       Art icle (Failure to obey Military Protective Order ) , 20030527
         Article (Assault consummated by battery on spouse ) , 2003 0527
         Article ( Communicating a threat to spouse ) , 20030527
         Sentence : (8 months) Suspended: (2 months confinement for 12 months)

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:           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. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 8, effective 9 September 2004 until
18 September 2005, Article 5815-010, EXECUTING A DISHONORABLE OR BAD CONDUCT DISCHARGE.

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 .



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

Applicant’s Issues

 1.        Applicant contends his Bipolar disorder was revealed to his recruiter but not taken into account during his discharge from the Navy.
2.       Applicant contends his discharge was improper and inequitable , because his Lieutenant and the Command Master Chief “railroaded” him to set the example in the command.

Decision

Date : 20 1 1 02 24             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 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. The Applicant's case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.

The Applicant identif ied two decisional issues for the Board ’s consideration . The B oard co nducted a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity. The Applicant’s record of service did not contain any NAVPERS 1070/613 (Page 13) retention warnings or commanding officer’s nonjudicial punishment (NJP), but did include one Special Court - Martial for violations of the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey order, violated a Military Protective Order from his commanding officer by contacting his wife directly and indirectly from 27 May-30 Jun 2003); Article 128 ( Assault consummated by battery, by striking his 36 - week pregnant wife in the face and on the head with his fist, 27 May 2003 ) ; and Article 134 ( Communicating a threat to his 36 - week pregnant wife , stating he would “stomp the baby out of you and I’ll kill you-kill it in front of you and then kill you , ” and that he would kill her if she called the police or talked to anyone about the physical assault, 27 May 2003 ) . Based on the offenses committed by the Applicant, his command chose not to administratively process him for separation, but instead to refer him to trial by Special Court - Martial. On 25 Jul 2003, the Applicant was found guilty of violating UCMJ Articles 92, 128, and 134 and was sentenced to forfeiture of pay, reduction to E-1, confinement for 8 months (two months suspended for 12 months), and a Bad Conduct Discharge. His case was submitted on appeal to the Navy Marine Corps Court of Cr i minal Appeals , which issued its decision and then affirmed the findings and sentence as adjudged by the Special Court - Martial on 8 Sep 2004.

The Applicant provided documentation that included: the Applicant’s personal letter to the Board (Dec 2009), a request for clemency letter to the Convening Authority (Sep 2003) , spouse letter to the Convening Authority (Aug 2003), certificates of course completion, and a letter of commendation. Though not submitted, documentation could have included: a verifiable employment record; ; ; character witness statements; evidence of alcohol rehabilitation or an alcohol -free life style ; evidence of financial stability ; certification of non-involvement with civil authorities ; college or vocational school transcripts; documentation of community or church service ; and marriage or child birth certificate s ( as applicable).

: (Decisional) ( ) . The Applicant contends his Bipolar disorder was revealed to his recruiter but not taken into account during his discharge from the Navy. In reviewing discharges, the Board 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. The Board thoroughly examined the Applicant’s service and medical records to determine whether he had in fact been enlisted into the U.S. Navy with known mental health problems, which is a bar to enlistment into the U.S. Armed Forces. There was no evidence in the enlistment contract or in the pre-enlistment physical exams to support the Applicant’s claim that he revealed his previous diagnosis (20 Jul 1999) of Schizoaffective disorder, Bipolar type and the drug treatment prescribed. On his 26 May 2000 pre-enlistment physical exam, he answered “NO” to questions regarding : previous treatment for depression ; previous treatment for a mental condition ; being a patient in any type of hospital ; and any illness or injur y sustained that required treatment . Based on the available evidence, the Board concluded that the Applicant was not truthful about his existing mental health problems during his enlistment accession and therefore, this issue was without merit and did not provide a basis for which relief could be granted. Relief d enied.

: (Decisional) ( ) . The Applicant contends his discharge was improper and inequitable , because his Lieutenant and the Command Master Chief “railroaded” him to set the example in the command. 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. With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency. The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Special Court-Martial Record of Trial proceedings, Punitive Discharge Process , and the evidence submitted by the Applicant, the Board found clemency was not warranted as the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed.

 Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries and punitive 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 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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