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NAVY | DRB | 2010_Navy | ND1001172
Original file (ND1001172.rtf) Auto-classification: Denied

ex-HTFA, USN
Current Discharge and Applicant’s Request
Application Received: 20100408
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)        20070412 - 20070423     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20070424     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20090918      Highest Rank/Rate: HTFN
Length of Service : Y ear ( s ) M onth ( s ) 25 D a y ( s )
Education Level:        AFQT: 92
Evaluation M arks:         Performance: 2 . 7 ( 4 )      Behavior: 2. 5 ( 4 )        OTA: 2. 87

Awards and Decorations ( per DD 214):     

Period of C ONF :

NJP :

- 20080919 :       Article (Unauthorized absence 20080906-20080908 ( 2 days ) )
         Article (Fail ure to obey a lawful order or regulation )
         Awarded : Susp ended:

- 200 90903 :       Article 89 ( Disrespect toward a Superior Commissioned Officer), 2 specifications
         Article 91 ( Insubordinate conduct toward a Second Class Petty Officer )
         Awarded : Susp ended:

S CM :    SPCM:    C C :

Retention Warning Counseling :

- 20090701 :       For knowingly and willfully disobeyed a lawful order issued to you by the Engineering Duty Office r during the execution of Light- Off Orders.

Administrative Corrections to the Applicant’s DD 214

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

          “ 2008 SEP 06-2008 SEP 08 ”
        
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 23, effective 20 May 2008 until 9 November 2009, Article 1910-140, 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

 1 .       Nondecisional issues: The Applicant contends that she was discriminated against by a second class petty officer, among other times that she was singled out, to do unjust work in connection with her supposed wrong-doings.

2.       Decisional issues : (1) The Applicant contends that the characterization of her service at discharge warrants an upgrade , because she did not receive the help the chain of command informed her that she should receive. ( 2 ) The Applicant contends that she was not counseled on what corrective actions to take to avoid punishment. ( 3 ) The Applicant contends that she sought mental health counseling and the chain of command failed to keep a status of her health. ( 4 ) The Applicant contends that she felt abused when a petty officer third class used profanity when yelling at her.

Decision

Date: 20 1 1 062 8    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 multiple decisional issue s related to equity for the NDRB’s consideration. The NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety. The Applicant entered military service at age 23 - on a four-year enlistment with a twelve-month extension - with a waiver to enlistment standards due to pre-service illegal drug usage - marijuana. T he Applicant enlisted as a contract E-3 due to college credits with a guarantee for training as a Hull Technician and a $5,000.00 bonus . The Applicant completed two years and four months of h er five - year obligated service contract. The App licant’s service record included one NAVPERS 1070/613 retention-counseling warning and two non-judicial punishments for violation s of the Uniform Code of Military Justice , specifically , Article 86 (Absent without leave - absenting herself from her unit, without authority , for 2 days) , Article 89 (Disrespect to a s uperior c ommissioned o fficer - 2 specifications) , Article 91 (Insubordinate conduct toward a Second Class Petty Officer) , and Article 92 (Failure to obey a lawful order or regulation).

The NDRB was unable to review the Applicant’s complete discharge package, as it was not included in h er official service record. The NDRB presumed regularity in governmental affairs in that the Separation Authority and Staff Judge Advocate review of the discharge package ensured that the Applicant had been afforded all of h er administrative rights pursuant to the separation process. The separation code on the Applicant’s DD Form 214 indicates that a discharge hearing board was not warranted due to the least favorable characterization of service being recommended. The Applicant did not submit any documentation to rebut any presumption of regularity in governmental affairs by the NDRB.

Nondecisional Issues. The Applicant contends that s he was di scriminated against by a second class petty officer, among other times that she was singled out, to do unjust work in connection with her supposed wrong-doings. The ND RB is not an investigative body; as such, any, and all, allegations of hazing or discrimination should be made to the Naval Inspector General ’ s Office for proper investigation and action as required .
: (Decisional Issue) ( ) . (1) The Applicant contends that the characterization of her service at discharge warrants an upgrade , because she did not receive the help the chain of command informed her that she should receive. (2) The Applicant contends that she was not counseled on what corrective actions to take to avoid punishment. (3) The Applicant contends that she sought mental health counseling and the chain of command failed to keep a status of her health. (4) The Applicant contends that she felt abused when a petty officer third class used profanity when yelling at her.

Propriety - The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service. In accordance with the Naval Military Personnel Manual (MILPERSMAN), a service member may be discharged, involuntarily, when their conduct or performance of duties meets one of the established reasons for separation. The Applicant was discharged from the Naval Service due to Misconduct , specifically, having established a pattern of misconduct as defined by Article 1910-140 of the MILPERSMAN. Although her administrative discharge was the result of misconduct, it was not part of a punitive punishment awarded at a trial by court-martial, which could have resulted in a substantially more harsh discharge. The Separation Authority reviewed the Command’s recommendation for separation; determining that the Applicant’s documented record of misconduct in service established the minimum requirements for discharge based on a pattern of misconduct; that separation in the Applicant’s case was warranted; and further, that the proposed characterization of service - General (Under Honorable Conditions) - was warranted. The Separation Authority directed the Applicant be discharged for the reason as stated and that she further receive an RE-4 reentry code - not recommended for re-enlistment. Based upon the available service records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy. After a detailed review of the facts, circumstances, and issues unique to this discharge action, the NDRB determined that the Applicant was discharged properly in accordance with the MILPERSMAN. As such, relief based on matters of propriety is not warranted.

Equity - The Applicant contends that the chain of command recommended treatment programs related to her misconduct (anger manage ment classes) , but she was not afforded the opportunity to attend . Furthermore, the Applicant contends that she was not counseled on corrective actions to take in order to avoid punishment. T he Applicant allege s that she was not counseled regarding corrective actions to take to avoid punishment ; however, the official service record documents a signed and dated 1070/613 retention counseling warning (01 July 2009) regarding her misconduct; this counseling specifically advised the Applicant of corrective actions to take and that failure to take corrective action may result in administrative separation. This counseling warning also advised the Applicant to seek assistance with the Fleet and Family Support Center who provide counseling services and training classes such as the specified anger management class. As such, the NDRB presumed that Applicant’s discharge was regular in all respects and that relief in regards to these matters was not warranted. The NDRB could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.

Equity - The Applicant contends that she sought mental health counseling and the chain of command failed to keep a status of her health. The mere presence of a psychiatric or psychological diagnosis is not a bar to Naval Service. Members may be separated for various psychiatric disorders provided that: (1) a medical diagnosis is made by competent military medical authority which concludes that member ’ s disorder is of such severity as to render member incapable of serving adequately in the Naval Service; (2) there is documented interference with performance of duty; and (3) counseling in accordance with MILPERSMAN is completed . Counseling is not required in cases where the military medical authority has evaluated the member as being self-destructive and/or a continuing danger to herself and others ; i n these cases, immediate processing for administrative separation is authorized . The Applicant’s treatment and mental health issues were not determined to be interfer ing with her ability to perform her dut ies ; h er record of service does not document any recommendation for separation due to a personality disorder or other condition not a disability . S he was not formally counsel ed regarding any mental health issues , and she was not evaluated as being self-destructive and/or a danger to her self o r other s . As such, the NDRB presumed that Applicant’s discharge was regular in all respects and that relief in regards to these matters was not warranted. The NDRB could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable

Equity - The Applicant contends that she felt abused when a petty officer third class used profanity when yelling at her. There is no evidence in the record, nor did the Applicant provide any documentation, to indicate s he attempted to utilize the numerous services available for service members who undergo personal problems during their enlistment , such as seeking conflict resolution through the command Equal Employment Opportunity representative, submitting a request mast with the Ship’s Captain, or through lodging of a complaint with a uniform victims advocate representative. Statements alone, without sufficient documentary evidence, are not enough for the NDRB to form a basis of relief. As such, the NDRB presumed th e Applicant’s discharge was regular in all respects and that relief in regards to these matters was not warranted. The NDRB could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.

Equity - A service member’s characterization of service is founded on the recognition of their 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 acceptable 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. The Applicant’s record of performance and conduct reflected a documented pattern of

misconduct . Additionally, the Applicant was counseled regarding possible discharge if s he failed to take corrective actions and comply with the expected standards of conduct of a Sailor in the United States Navy ; she violated that warning . After reviewing the Applicant’s official service record, the NDRB determined that the Applicant’s conduct, which forms the primary basis for determining the characterization of h er service, reflected honest and faithful service, but that significant negative aspects of her conduct or performance did outweigh the positive aspects of her military record. As such, the NDRB determined that the characterization of service at discharge was appropriate, was equitable, and was consistent with the characterization of discharge given others in similar circumstances. The NDRB determined that an upgrade would be inappropriate; accordingly, relief based on equity is denied.

Summary : After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, 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 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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