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NAVY | DRB | 2010_Navy | ND1002190
Original file (ND1002190.rtf) Auto-classification: Denied

ex-SN, USN
Current Discharge and Applicant’s Request
Application Received: 20100908
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)        20020404 - 20020610     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20020611     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20040916      Highest Rank/Rate: SN
Length of Service : Y ear ( s ) M onth ( s ) 06 D a y ( s )
Education Level:        AFQT: NFIR
Evaluation M arks:         Performance: 3.0 ( 2 )      Behavior: 2.5 ( 2 )        OTA: 2.83

Awards and Decorations ( per DD 214):     

Periods of C ONF :

NJP :

- 20030505 :       Article 86 (Absence without leave)
         Awarded : Susp ended:

- 20030624 :       Article (Absence without leave)
         Article (Failure to obey order or regulation)
         Article134 (General article), 2 specifications
         Specification 1: Furnishing alcohol to a minor
         Specification 2: Bringing discredit upon herself and the U.S. Navy
         Awarded : Susp ended:

S CM :

SPCM:

CC:

- 20030612 :       Offense: DUI
         Sentence : $150.00 fine and 36 hours community service

Retention Warning Counseling :

- 20030505 :       For violation of A rticle 86, absence without leave , as addressed by OIC NTTCD Monterey 20030505 at an OIC Mast held at Defense Language Institute Monterey, California



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), re-issued October 2002, effective 22 August 2002 until 25 April 2005, 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 issue : The Applicant seeks an upgrade in characterization of service in order to be eligible to receive her Montgomery G.I. Bill benefits to further her education.

2.       Decisional issue : (Propriety/Equity) The Applicant contends that her discharge characterization of service was inequitable , because she was discharged pursuant to a medical situation, not misconduct.

Decision

Date: 20 1 1 0113    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 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 both equity and propriety.

The Applicant’s record of service is marred with one NAVPERS 1070/613 retention-counseling warning and two non-judicial punishments (NJP s ) for s o f the Uniform Code of Military Justice (UCMJ) , specifically : Article 86 (Absence without leave; to wit, absented herself from her u nit ) , Article 92 (Failure to obey order or regulation), and Article 134 (2 specifications - furnishing alcohol to a minor and conduct that brought discredit upon herself and the U . S . Navy) . Additionally, the Applicant’s record of service reflects a civilian criminal court conviction of driving under the influence of alcohol (DUI).

The Applicant enlisted in the Navy as a cryptologic technician (interpreter) with an enlistment bonus guarantee and an obligation to extend her initial enlistment contract for 24 months. Upon completion of recruit training, the Applicant attended her military occupational specialty school foreign language training at the Defense Language Institute , Monterey, California. In May and June of 2003, w hile at the Defense Language Institute as a student, the Applicant received her two non-judicial punishments and a retention counseling warning. She was withdrawn from the school, her enlistment guarantee was revoked, and she was re-assigned to Naval Station, San Diego to complete her initial four - year contract.

 As specified in the Applicant’s medical record, she was subject ed to a sexual assault during April/May 2004 (exact date not specified in record, extrapolated from medical evaluation entries). The Applicant received counseling and treatment at the Fleet Mental Health Unit, Naval Station San Diego. The Applicant was recommended for administrative separation by appropriately credentialed mental health care providers. On 13 August 2004, the Applicant was diagnosed with a personality disorder that rendered her at risk for engaging in maladaptive behavior, including injuring herself or others. She was recommended for expeditious processing, thus waiving the requirement for a NAVPERS 1070/613 retention-counseling warning and continued period of evaluation. On 31 August 2004, the Applicant was again diagnosed with a personality disorder that rendered her at risk and was recommended for administrative separation, expeditiously. On 08 September, the Staff Psychiatrist at the Naval Medical Center diagnosed the personality disorder so severe that the Applicant’s ability to function effectively i n the n aval e nvironment was significantly impaired; expeditious separation was again recommend ed . On 09 September 2004, the Applicant was notified that she was being administrative ly processed for separation . The Applicant was dual notified for separation due to Convenience of the Government – Personality Disorder in accordance with paragraph 1910-122 of the Naval Military P ersonnel Manual (MILPERSMAN) , Misconduct – Commission of a Serious Offense (1910-142), and Misconduct – Pattern of Misconduct (1910-140) . The Applicant was further advised that she was being recommended to receive a General (Under Honorable Conditions) characterization of service at discharge. The NDRB reviewed the Applicant’s administrative separation package to verify that she was afforded the opportunity to exercise her rights as required by the MILPERSMAN; th e Applicant elected to consult with a qualified counsel and to submit a written statement to the S eparation A uthority. On 10 September 2004 , the Separation Authority directed the Applicant be discharged by reason of Misconduct – Pattern of Misconduct (MILPERSMAN 1910-140) with a General ( Under Honorable Conditions ) characterization of service. The Applicant provided post-service documentation for the board’s consideration to include a Department of Veterans Affairs Rating Decision establishing the Applicant with a 70% disab ility rating due to chronic Post - Traumatic Stress Disorder (PTSD) and copies of various letters of recommendation for a Diplomacy Program at Norwich University. The Applicant should be aware that submission of documentation regarding post-service conduct alone does not guarantee an upgrade from an unfavorable discharge as the NDRB reviews each discharge on a case-by-case basis. In doing this, the NDRB considers post-service conduct in order to determine if the misconduct committed during the period of service under review was indicative of the Applicant's character or was an aberration.

 : (Non-decisional). The Applicant seeks an upgrade in characterization of service in order to be eligible to receive her Montgomery G.I. Bill benefits in order to further her education. The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service educational benefits, not the NDRB. This issue does not serve to provide a foundation upon which the Board can grant relief; there is no requirement - or law - that grants the NDRB the authority to re-characterize discharges based solely on the issue of obtaining veterans educational benefits. Additionally, 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 the equity of a discharge.

: (Decisional) ( ) – RELIEF NOT WARRANTED . The Applicant contends that her discharge characterization of service was inequitable , because she was discharged pursuant to a medical situation, not misconduct. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service. A review of the Applicant’s official service record reveals an established pattern of misconduct, to include the commission of serious offenses - punishable by punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. A General (Under Honorable Conditions) characterization of service is appropriate if the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance outweighs positive aspects of the member’s military record. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy. A preponderance of the evidence reviewed supports the conclusion that the Applicant’s service was honest and faithful but significant negative aspects of her conduct throughout her service outweighed the positive aspects of her service record; as such, the command was justified in awarding the Applicant a General (Under Honorable Conditions) discharge. The Board determined an upgrade to an Honorable characterization of service would be inappropriate. Relief denied .

: (Decisional – Board Issue ) ( ) – RELIEF WARRANTED . 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 . Pursuant to paragraph 1910-122 of the MILPERSMAN , members may be processed for separation based on a Mental Health Care Professional's clinical diagnosis of a personality disorder when that disorder is so severe that one's ability to function effectively and perform their duties is significantly impaired and the individual poses a threat to the safety or well being of themselves or others. Separation for personality disorder is not normally appropriate when separation is warranted for any other reason ( e.g ., member meets minimum criteria for misconduct processing). The record of evidence reflects the Applicant met the requirements for processing by reason of Convenience of the Government – Personality Disorder and for documented Misconduct . Though separation for misconduct normally precedes separation for a personality disorder, it was the determination of the NDRB, after reviewing all of the facts and circumstances unique to this case, that if not for the recommendation for expeditious separation for p ersonality d isorder, the A pplicant would not have been considered for separat ion . The Applicant’s misconduct was addressed by the formal school training command in 2003; the member was removed from the school, retained in service , and provided permanent change of station orders to Naval Station San Diego for duty . Unfortunately, t he Applicant was then the victim of a sexual assault and eventually diagnosed with an Axis I Adjustment Disorder with Mixed A nxiety, Depression, and Post - Traumatic Stress Disorder (non-combat related) and with a n Axis II diagnosis of B orderline P ersonality D isorder . The Applicant was determined to be fit for separation and responsible for her actions with continued follow-up treatment by the Mental Health Unit providers . As such, the NDRB determined inequity in the discharge action; the proper and equitable narrative reason for separation from Naval service was Convenience of the Government – Personality Disorder, not Misconduct – Pattern of Misconduct. Accordingly, relief is appropriate and warranted.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, her post - service documentation, medical and service record entries, and discharge process, the Board found the discharge was proper but in equitable. Therefore, the awarded characterization of service shall GENERAL (UNDER HONORABLE CONDITIONS) but the narrative reason for separation shall change to . The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of her discharge. The Applicant is further 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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