Upgrade.Vet

NAVY | DRB | 2011_Navy | ND1100043

Original file (ND1100043.rtf) Auto-classification: Denied

ex-ABEAN, USN

Current Discharge and Applicant’s Request

Application Received: 20101005

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)        20011031 - 20020704     Active:

Period of Service Under Review:
Date of Current Enlistment: 20020705     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20041028      Highest Rank/Rate: ABEAN
Length of Service : Y ear ( s ) M onth ( s ) 24 D a y ( s )
Education Level:        AFQT: 70
Evaluation M arks:         Performance: 3.0 ( 3 )      Behavior: 1.6 ( 3 )        OTA: 2.55

Awards and Decorations ( per DD 214):

Periods of C ONF :

NJP :

- 20040927 :      Article (Desertion) [Extracted from NAVPERS 1616/26(03-02) dated 20041001]
         Article (Insubordinate conduct toward a Petty Officer, 2 specifications )
         Article (Failure to obey lawful order)
         Article 108 (Damage of government property)
         Article (Larceny)
         Article (Threat of hoax, bomb)
         Awarded: Suspended:

S CM :    SPCM:    C C :      Retention Warning Counseling :

NDRB Documentary Review Conducted (date):        20090129
NDRB Documentary Review Docket Number:   ND08-01969
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.

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 1910-142, SEPARATION 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, Articles 85, , , .

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

Applicant’s Issues

1.        Post-service conduct.
2.       The Applicant contends his youth and immaturity mitigate his misconduct of record.
3. The Applicant contends he was suffering from depression and sleep and mental health problems .

Decision

Date : 2011 0803             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 85 ( Desertion ), Article ( Insubordinate conduct, ), Article ( ), Article 108 ( Damage of government property ), Article ( ) , and Article ( : Threat of hoax, bomb ). Based on the offenses committed by the Applicant, command administratively processed for separation. The NDRB did not have the Applicant’s complete administrative separation package to determine whether or not the Applicant waived rights to co nsult with a qualified counsel or submit a written statement. The Applicant waived his right to an administrative separation board .

: (Decisional) ( ) . The Applicant requested the NDRB consider post - service conduct as a basis to gain a more thorough understanding of performance and conduct during the period of service under review. The Applicant submitted three character reference letters that substantiated steady employment, significant involvement in a church, and pursuit of a college degree. Unfortunately, t he Applicant ’ s efforts need to be more encompassing. The Applicant could have provide d post-service documentation as detailed in the Post-Service Conduct paragraph in the Addendum with the full understanding that completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post - s ervice conduct establishes a reason to change the characterization or narrative reason. Relief denied.

: (Decisional) ( ) . The Applicant contends his youth and immaturity mitigate his misconduct of record. Additionally, the Applicant contends he was suffering from depression and sleep and mental health problems. The Applicant was 17 y ears old when he entered the Navy, and was 19 at the time of his misconduct. Careful examination of the Applicant’s service and medical records revealed he was struggling with significant depression, anx iety , and invasive nightmares as well as sleep problems that were possibly exacerbated by the side effects of prescribed medications. The record included communication between members of the Applicant’s command as well as medical officers in which bizarre statements and behavior were noted. The Applicant was treated for approximately six months both medically , and with counseling prior to his misconduct . He held several diagnos e s including adjustment disorder, sleep disorder, narcissistic and schizotypal personality features , and Personality Disorder Not Otherwise Specified with Cluster B traits. Performance evaluations from his enlistment explicitly point out immaturity and lack of focus in the Applicant’s performance. The NDRB carefully considered the evidence in the record as well as the Applicant’s testimony. The NDRB found the Applicant’s significant and well - documented mental health issues affected his ability to make rational decisions. The NDRB determined these issues mitigated his misconduct sufficiently to warrant a n upgrade with no change to the na rrative reason for separation.

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 .

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 | 2011_Navy | ND1100043

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