Upgrade.Vet

NAVY | DRB | 2011_Navy | ND1101025

Original file (ND1101025.rtf) Auto-classification: Denied

ex-SR, USN

Current Discharge and Applicant’s Request

Application Received: 20110315

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to:       Entry Level Separation

Summary of Service
Prior Service:
Inactive:         US N R (DEP)        19990930 - 19991024     Active:

Period of Service Under Review:
Date of Current Enlistment: 19991025     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19991202      Highest Rank/Rate: SR
Length of Service: Y ear( s ) M onth( s ) 08 D a y ( s )
Education Level:        AFQT: 51
Evaluation M arks:         Performance: N/A          Behavior: N/A    OTA: N/A
Awards and Decorations ( per DD 214):      NONE

Periods of UA /C ONF :

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

Administrative Corrections to the Applicant’s DD 214

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

         “ MILPERSMAN 1910-142 ”

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 18, effective 12 December 1997 until 29 March 2000,
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 ing 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 128 .

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

Applicant’s Issues

D ecisional issues : The Applicant contends that undue stress and sleep deprivation while starting recruit training triggered a relapse and is mitigation to her misconduct of record, thereby warranting a change in the characterization of her service. The Applicant contends that her post-service mental health diagnosis demonstrates that her i n- service misconduct was an un intended, adverse consequence.
Decision

Date: 20 1 2 0103 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 two decisional issue s for the NDRB’s consideration (equity) ; additionally, the NDRB completed a thorough review of the circumstances leading to the discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety. The Applicant enlisted in the United States Navy at age 2 8 for a four- year enlistment , with no extensions , under a guarantee of training as a Quartermaster . The Applicant completed one month of the four -year contractual obligation before being discharged for M isconduct - C ommission of a S erious O ffense . During the Applicant ’ s period of service, s he did not receive any NAVPERS 1070/613 (Page 13) retention-counseling warning s or any nonjudicial or judicial punishments for violations of the Uniform Code of Military Justice. However, the Applicant was charged with violati ng the UCMJ for two specifications of violating Article 128 (Assault, consummated by battery) and Article 108 (Loss, damage, destruction of government property). Additionally, the Applicant was found to have been enlisted under a Defective Enlistment or Induction due to erroneous enlistment or fraudulent enlistment due to undisclosed pre-service mental health evaluation, diagnosis, and treatment.

The Applicant’ service record contains a complete copy of the discharge package , which was reviewed by the NDRB . During the discharge process, t he Applicant was notified that s he was being processed for discharge in accordance with the Naval Military Personnel Manual (MILPERSMAN) for Misconduct - Commission of a Serious Offense (Article 1910-142) and Defective Enlistment and Induction - D ue to Erroneous Enlistment (Article 1910-130) . The Applicant was advised that the least favorable characterization of service warranted was Under Other Than Honorable Conditions and that this is what the command was recommending she receive. The Applicant acknowledge this notification, elected to consult with an appropriately credentialed military defense counsel, and elected to have her case heard by an administrative discharge hearing board. The administrative discharge board found that a preponderance of the evidence supported th e finding of Misconduct - Commission of a Serious Offense and that an erroneous enlistment had occurred. By a vote of 3-0, the administrative discharge board recommended separation for both findings : moreover, by a vote of 3-0, the board recommended the overall characterization of service at discharge be Under Other Than Honorable Conditions . On 01 December 1999 , the Separation Authority reviewed the chain of command’s recommendation for separation and the administrative discharge board’s findings and recommendations ; he determined that a preponderance of the evidence supported separation pursuant to Article 1910-142 (Misconduct - Commission of a Serious Offense) and Article 1910-130 (Erroneous Enlistment) . The Separation Authority further directed that the primary basis of discharge be Misconduct (Serious Offense) and that the Applicant receive an Under Other Than Honorable Conditions characterization of service based on the nature of the misconduct . The Separation Authority further directed that s he be assigned a re-entry code of RE-4 (not recommended for reenlistment). The Applicant was discharged on 02 December 1999 with a narrative reason for separation of MISCONDUCT.

( Decisional Issues) ( ) . The Applicant contends that undue stress, coupled with sleep deprivation while starting recruit training, triggered a relapse and is mitigation to her misconduct of record, thereby warranting a change in the characterization of her service. The Applicant contends that her post-service mental health diagnosis demonstrates that her misconduct was an unintended, adverse consequence.

Propriety - In accordance with the MILPERSMAN, a service member may be discharged - involuntarily - when their conduct or performance of duties meets one of the established reasons for separation. In accordance with Article 1910-142 of the MILPERSMAN, service members may be separated for misconduct due to the commission of a serious military offense when the Commanding Officer believes the specific circumstances of the offense warrant separation and the offense(s) would warrant a punitive discharge if adjudicated at trial by court - martial. The Applicant’s violation of Article 128 of the UCMJ (2 specifications) warrant ed punitive discharge (Bad Conduct Discharge/Dishonorable Discharge) and a maximum confinement of up to three years, if adjudged at trial by a special or general court - martial. Moreover, despite a servicemember’s prior record of service, certain serious offenses, even though isolated, may warrant separation from the Navy to maintain proper order and discipline. The Separation Authority reviewed the Command’s recommendation for separation and the results of the administrative discharge board and determined that a preponderance of the evidence did support a determination that the Applicant had engaged in the misconduct as specified and did establish the minimum requirement for discharge based on Misconduct (Commission of a Serious Offense). The Separation Authority determined that separation in the Applicant’s case was proper and further, that the proposed characterization of service - Under Other Than Honorable Conditions - was warranted. Normally, service procedures dictate discharge actions while in recruit training for misconduct are processed with an entry-level separation due to performance and conduct. However, in this specific case, due to the egregious nature of the documented misconduct ( multiple physical assault s of which one r esult ed in inflicting bodily harm), the Command chose to pursue the more applicable narrative reason for separation of Misconduct (Commission of a Serious Offense). Based on a review of the evidence of record and documentation provided by the Applicant, the NDRB determined that there was no impropriety because of an error of fact, law, procedure, or discretion with the discharge action and that a change based on propriety is not warranted. As such, relief based on propriety is denied.

Equity - When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and /or ability to conform to the military’s standards of conduct and discipline. While some members may be less mature than others , and some may experience emotional difficulties, the NDRB does not view a member’s claims of immaturity, emotional issues , or mental health issues to be mitigating factor s or sufficient reason s for misconduct - without a valid medical diagnosis that clearly defin es the underlying condition and its direct relation to the misconduct while in service . The Applicant contends that she was diagnosed, post-service, with B i p olar Disorder with anxiety - as evidence d by her school certification (2005). However, the documentation does not provide a valid medical diagnosis nor does it document the underlying conditions and their relation ship to the misconduct of record in 1999 . As such, t he NDRB discerned that the Applicant ’s post-service diagnosis was not of sufficient nature to exculpate the Applicant’s deliberate in-service misconduct and determined that no change to the narrative reason for discharge or the characteriza tion of service was warranted.

Normally, a separation initiated while a member is in an entry level status ( i.e., within the first 180 days of continuous active duty, computation starts upon enlistment and terminates on the date notification of separation proceedings are initiated) will be described as ELS , and the Applicant will receive a characterization of service of Uncharacterized. However, when characterization of service as Under Other Than Honorable (OTH) conditions is authorized under the reason for separation , and is warranted by any special or unique circumstanc es of the case , the Uncharacterized may be foregone and the OTH issued . Furthermore, w hen administratively discharged early, characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation. Other considerations are given to the member’s length of service, grade, aptitude, and physical and mental condition. When the quality of that member’s service has met the standards of acceptable conduct and performance of duty for military personnel, it is appropriate to characterize th e service under Honorable conditions. However, an Under Other Than Honorable Conditions discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service. Based on the seriousness of the offenses , coupled with the physical and violent nature of h er misconduct, the Applicant’s length of service, and h er documented in-service performance and conduct, the NDRB determined that the Applicant’s service did document one or more acts or omissions that constituted a significant departure from th e conduc t expected of members of the Naval Service. The NDRB determined that the characterization of the Applicant ’ s discharge was equitable and that h er separation from the Naval Service was consistent with others in similar circumstances. Accordingly, relief based on matters of 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 MISCONDUCT. 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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NAVY | DRB | 2011_Navy | ND1101025

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