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NAVY | DRB | 2010_Navy | ND1001127
Original file (ND1001127.rtf) Auto-classification: Denied

ex-SA, USNR
Current Discharge and Applicant’s Request
Application Received: 20100320
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3630600 [COMMISSION OF A SERIOUS OFFENSE]

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

Summary of Service
Prior Service:
Inactive:         NONE              Active:  

Period of Service Under Review:
Date of Current Enlistment: 19931214     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19950330      Highest Rank/Rate: SA
Length of Service:
         Inactive:        Y ear( s ) M onth( s ) 28 D a y ( s )
         Active   Y ear( s ) M onth( s ) 17 D a y ( s )
 Education Level:        AFQT: 74
Evaluation M arks:         Performance: 3.6 ( 2 )      Behavior: 2.9 ( 2 )        OTA: 3.50
Awards and Decorations ( per DD 214):     

Periods of UA /C ONF :

NJP :
- 19940803 :      Article (Failure to obey order or regulation, 2 specifications )
         Awarded : Susp ended: Suspension vacated 19941212

S CM :    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:           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 9, effective 22 July 1994 until 2 October 1996,
Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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 92 .


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

Applicant’s Issues

 1.        The Applicant contends she was denied her right to counsel.
2.       The Applicant contends she was threatened and harassed by her command and unduly pressured to drop rape charges a gainst another service member.
3.       The Applicant contends she never took drugs and was given two urinalysis tests within hours of each other. One was positive and one was negative.
4.       The Applicant contends her personality disorder diagnosis was not properly considered in determining he r characterization of service.
5.       The Applicant contends Post - Traumatic Stress Disorder (PTSD) diagnosed in service mitigates her misconduct of record.
6.       The Applicant contends her separation was not properly reviewed since it involved sexual assaul t.

Decision

Date : 2011 1109             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 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 included for o f the Uniform Code of Military Justice (UCMJ): Article ( , ). The record shows the Applicant also had a positive urinalysis test in violation of Article 112a (Wrongful use, possession, etc of a controlled substance). B ased on the offenses committed by the Applicant, command administratively processed for separation. Based on the Article 112a violation, processing for administrative separation is mandatory. When notified of administrative separation processing using the procedure, the Applicant rights to consult with a qualified counsel and submit a written statement. The Applicant waived her right to an administrative board.

: (Decisional) ( ) . The Applicant contends she was denied her right to counsel. The record shows the Applicant was properly notified and elected her right to counsel and to submit a written statement. The Applicant waived her right to an administrative board. The Applicant provided no documentation or evidence to support this contention or to overcome the NDRB’s presumption of regularity in the conduct of governmental affairs. An upgrade based on this issue would be inappropriate.

: (Decisional) ( ) . The Applicant contends she was threatened and harassed by her command and unduly pressured to drop rape charges against another service member. After carefully examining the record, the NDRB was unable to find any evidence of threats, harassment, or other improprieties or inequities in the circumstances and processes of the Applicant’s separation proceedings. The Applicant provided insufficient documentation and evidence to support this contention. The NDRB determined an upgrade based on this issue would be inappropriate.

: (Decisional) ( ) . The Applicant contends she never took drugs and was given two urinalysis tests within hours of each other. One was positive and one was negative. The Applicant submitted medical documentation substantiating this claim. After carefully examining the evidence, the NDRB determined the positive drug test to be proper since it was processed through the Nav y Drug Screening Laboratory (NDSL), which is able to detect much lower threshold levels of illegal drugs due to equipment and processes not available to base clinics. Therefore, the NDRB determined the most reliable evidence supports the Applicant’s use of illegal drugs. An u pgrade would be inappropriate.



: (Decisional) ( ) . The Applicant contends her personality disorder diagnosis was not properly considered in determining h er characterization of service. The record does not support the Applicant’s contention. While the Applicant was diagnosed with a personality disorder, there is no evidence this disorder rendered her incapable of abiding by Navy rules and regulations. The record shows the Applicant’s separation proceedings were both proper and equitable with regard to this issue. An u pgrade would be inappropriate.

Issue 5: (Decisional) ( ) PARTIAL . The Applicant contends PTSD diagnosed in service mitigates her misconduct of record. The Applicant submitted in - service medical documentation showing a clear diagnosis of PTSD in connection with a sexual assault by another military member. The Applicant’s service medical record clearly shows she was diagnosed with PTSD of such severity that she was found to be severely impaired. The Applicant submitted post-service documentation from the VA showing her disability has continued to be a debilitating issue in her life. After carefully examining the record, the NDRB determined there is sufficient reason to believe the Applicant’s PTSD stemming from her attack greatly influenced her unfortunate decision to use illegal drugs. However, while mitigation is in order, the NDRB determined the Applicant still bears some responsibility for her actions. Therefore, the NDRB determined an upgrade to General (Under Honorable Conditions) would be appropriate for this issue. Partial relief warranted.

Issue 6: (Decisional) ( ) . The Applicant contends her separation was not properly reviewed since it involved sexual assault. The Applicant cited an Army regulation in support of her contention. The NDRB was unable to locate a similar requirement existing for the Navy or the Department of Defense . The record is clear that the Applicant’s case was thoroughly investigated by proper authorities prior to her separation. The NDRB found no evidence of any impropriety in the Applicant’s separation proceedings. An upgrade for this i ssue would be inappropriate.

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