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NAVY | DRB | 2011_Navy | ND1101133

Original file (ND1101133.rtf) Auto-classification: Denied

ex-AR, USN

Current Discharge and Applicant’s Request

Application Received: 20110401

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        20010922 - 20010927     Active:

Period of Service Under Review:
Date of Current Enlistment: 20010928     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20030812      Highest Rank/Rate: AA
Length of Service: Y ear M onth s 15 D ays
Education Level:        AFQT: NFIR
Evaluation M arks:         Performance: 2.0 ( 1 )      Behavior: 1.0 ( 1 )        OTA: 2.00

Awards and Decorations ( per DD 214):      NDSM

NJP : 2

- 200210 11 :      Article 128 (Assault)
         Awarded: FOP RESTR EPD Suspended: NONE

- 20030329 :      Article 86 (Absence without leave on 20030306 )
         Article 89 (Disrespect toward a superior commissioned officer)
         Article 92 (Failure to obey order or regulation)
         Awarded: RIR C BW 3 days Suspended:

S CM : 2

- 20030 331 :      Article 89 (Disrespect toward a superior commissioned officer)
         Article 90 (Willfully disobeying a superior commissioned officer, 2 specifications )
         Article 92 (Failure to obey order or regulation, 2 specifications )
         Article 134 (Disorderly conduct, urinating on the deck of the ship’s brig )
         Sentence: FOP CONF 30 days (20030331-20030429, 29 days)

-20030 527 :       Article 86 (Absence without leave from 20030516-20030517)
         Article 89 (Disrespect toward a superior commissioned officer)
         Article 92 (Failure to obey order or regulation; being on liberty alone in foreign port)
         Sentence: FOP CONF 30 days (20030527-20030620, 24 days)

SPCM: NONE C C : NONE

Retention Warning Counseling: 1

- 20021023 :      For CO’s NJP held 11 October 2002 for violation of UCMJ Article 128 ( A ssault ) .

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative er rors on the original DD Form 214:

         Block 12a, Date Entered AD This Period, should read: “01 SEP 28”
         Block 12c, Net Active Service This Period, should read: “01 10 15”
         “ 03MAR06, 03MAR31 TO 03APR29 ”

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:                  Other Documentation:
                  Additional Statements:
         From Applicant:          From/To Representation:          From/To Congress member:

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. The Applicant wants his discharge upgraded so he can receive VA medical benefits.
2. The Applicant contends the misconduct that led to his discharge was due to a psychiatric condition.
3 . The Applicant contends he should have received a medical discharge , because he was suffering from progressive isolation and reclusive and mental incapacity that were a direct result of his service.

Decision

Date: 20 1 2 0712 Location: Washington D.C . R epresentation : Civilian counsel

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 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 one NAVPERS 1070/613 (Page 13) warning and two non - judicial punishment s (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave on 20030306), Article 89 (Disrespect toward a superior commissioned officer), Article 92 (Failure to obey order or regulation), and Article 128 (Assault, 20020828) . It also included two trials by summary court-martial for violations of the UCMJ: Article 86 (Absence without leave from 20030516-20030517), Article 89 (Disrespect toward a superior commissioned officer , 2 specifications ), Article 90 (Willfully disobeying a superior commissioned officer, 2 specifications), Article 92 (Failure to obey order or regulation, 2 specifications), and Article 134 (Disorderly conduct, urinating on the deck of the ship’s brig). B ased on the offenses committed by the Applicant, his command administratively processed him for separation. When notified of administrative separation processing using the administrative board procedure, the Applicant waived his rights to consult with a qualified counsel, submit a written statement, and request an administrative board .

: (Non-decisional ) The Applicant wants his discharge upgraded so he can receive VA medical benefits. There is no requirement, or law, that grants re-characterization solely on the issue of facilitating access to VA benefits. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing eligibility to receive v eterans medical benefits. Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge. As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.

: (Decisional) ( ) . The Applicant contends the misconduct that led to his discharge was due to a psychiatric condition. The Applicant provided documentation indicating that he was not diagnosed with a psychiatric condition until several years after his discharge but contend s that his condition is service - related. When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline. However, the Board generally does not consider the circumstances surrounding the Applicant’s stated condition, the implied incorrect diagnosis or non-diagnosis , nor the medical treatment given to the Applicant to be of sufficient nature to exculpate the misconduct. Even if the Applicant could prove his condition existed while in the Navy, or was due to his service in the Navy, regulations direct that punitive or administrative separations take precedence over medical disability considerations. The Board concluded that relief based on this issue is not warranted. Relief denied.

: (Decisional) ( ) . The Applicant contends he should have received a medical discharge , because he was suffering from progressive isolation and reclusive and mental incapacity that were a direct result of his service. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his claim . The NDRB did not have the Applicant’s medical record to determine if he was ever diagnosed with a mental condition while in the Navy. Neither was there any evidence found in his service record indicating he had been diagnosed with any type of medical

condition and determined to not be responsible for his actions. The documentation provide d by the Applicant suggests he was not diagnosed with a mental illness until several years after he was discharged from the Navy. Although it is evident that he does have a mental illness , it does not prove that he had the condition while in the Navy or that some traumatic experience in the Navy caused his condition. The documentation provided by the Applicant does not overcome the government’s presumption of regularity in this case. Even if the Applicant could prove his condition existed while in the Navy, or was caused by events occurring in the Navy, regulations direct that p unitive or administrative separations take precedence over medical disability considerations. Relief denied.

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 for additional information.

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 | ND1101133

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