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NAVY | DRB | 2011_Navy | ND1101343
Original file (ND1101343.rtf) Auto-classification: Denied

ex-ABH3, USN
Current Discharge and Applicant’s Request
Application Received: 20110503
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)        19930224 - 19930321     Active:            19930322 - 19970811

Period of Service Under Review:
Date of Current Enlistment: 19970812     Age at Enlistment:
Period of E nlistment : Years 33 MONTHS Extension
Date of Discharge: 20030228      Highest Rank/Rate: ABH3
Length of Service: Y ear( s ) M onth( s ) 17 D a y ( s )
 Education Level:        AFQT: 32
Evaluation M arks:         Performance: NFIR         Behavior: NFIR   OTA: NFIR

Awards and Decorations ( per DD 214):      (2) (4) (2) MUC

Periods of C ONF :

NJP :
- 19980709 :      Article (Unauthorized absence , 19980610 )
         Awarded: Suspended: (suspend 6 months)

S CM :    SPCM:

CIVIL ARREST:
- 20001219 :       Charges : Two felony counts of child assault, witness tampering, two misdemeanor charges of endangering the welfare of a child and animal neglect. Released from jail 20010109 and placed on probation. At a subsequent hearing pled guilty to animal cruelty. Applicant pled no contest to one count of aggravated assault and one count of assault on children on 20021001.
         [Extracted from Commanding Officer’s letter dated 20030130.]

- 20021204 :       Charge : Operating a vehicle under the influence of alcohol. Arrest violated the conditions of her probation and prompted the trial judge to revoke her bail. Applicant was again placed under custody in the Cumberland County Jail where she remained until sentencing hearing on 20030128.
         [Extracted from Commanding Officer’s letter dated 20030130.]

C C :
- 20030128 :       Offense: Operating a vehicle under the influence of alcohol
         [Extracted from Commanding Officer’s letter dated 20030130.]
         Sentence : Prison for 1 year

Retention Warning Counseling :

- 19980720 :       For unauthorized absence. [Date extracted from Commanding Officer’s letter dated 20030130.]


Administrative Corrections to the Applicant’s DD 214

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

          “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 930322 UNTIL 970811 ”
         “ UNDER OTHER THAN HONORABLE CONDITIONS ”
         “ MISCONDUCT ”

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), 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, Article s 92 , 111, 128 , 134 .



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

Applicant’s Issues

 1.        Applicant contends mental health issues mitigate the misconduct for which she was separated.

Decision

Date: 20 1 2 07 12             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 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 identif ied one decisional issue for the Board ’s consideration . T h e Board complete d a thorough review of the circumstances that led to her discharge and the discharge process to ensure her discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) retention warning and for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave , 10 June 1998 ) . T he record did indicate the Applicant was arrested by civil authorities on 19 December 2000 and charged with two felony counts of child assault and witness tampering, and two misdemeanor charges of endangering the welfare of a child and animal neglect. At a subsequent court appearance on 1 October 2002, she pled guilty to animal cruelty and no contest to one count of aggravated assault and one count of assault on children . On 4 December 2002, the Applicant was arrested for driving under the influence (DUI) , which violated the conditions of her probation from the previously adjudicated civil offenses and prompted the trial judge to revoke her bail. On 28 January 2003, the Applicant was sentenced to 1 year in prison.

Based on the repeated and serious nature of the offenses committed by the Applicant, command processed her for administrative separation. When notified of administrative separation processing using the procedure on 17 December 2002 , the Applicant elected to exercise rights to consult with a qualified counsel and request an A dministrative S eparation B oard (ASB) . The ASB was conducted while the Applicant was in the hands of civil authorities awaiting sentencing to determine whether the Applicant should be retained or separated from the Naval Service due to allegations of misconduct (as evidenced by civil police authority arrest record and civil court proceedings). Upon conclusion of the hearing, the Senior Member of the ASB forwarded the findings to the Applicant’s Commanding Officer as follows: (By 3-0 vote) via a preponderance of the evidence, the Applicant committed M isconduct - S erious O ffense and M isconduct - C ivil C onviction; (By 3-0 vote) the Applicant should be separated from the Navy; (By 3-0 vote) the Applicant should receive an Under Other Than Honorable Conditions discharge due to Misconduct. The Applicant was separated from the Navy on 28 February 2003 with an Under Other Than Honorable Conditions discharge due to Misconduct - Serious Offense.

: (Decisional) ( ) . The Applicant contends mental health issues mitigate the misconduct for which she was separated. The Applicant submitted post-service medical documentation that indicated she was admitted to a psychiatric hospital from October 2009 to May 2010 (as a result of an arrest for a civil court probation violation in May 2009) where she received extensive mental health evaluation and subsequent therapy for diagnosed AXIS I: Schizophrenia (paranoid type, chronic) and other general health - related issues. The NDRB conducted an exhaustive review of the Applicant’s service and m edical records and could find no evidence to indicate the Applicant was not fully responsible for her actions while in service . Although the service medical records indicate she sought and received counseling for stress - related issues more than one year prior to the December 2000 civil arrest and subsequent conviction that resulted in her eventual separation from the Navy, t he evidence of record does not demonstrate the Applicant was not responsible for h er conduct or that s he should not be held accountable for h er actions. W hen a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under H onorable conditions. A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweigh the positive aspects of the member’s service record. An Under Other Than

Honorable Conditions discharge is warranted when a Sailor commits or omits an act that constitutes a significant departure from the conduct expected from a member of the Naval Service. The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of conduct expected of all Sailors, especially considering her grade, experience and length of service, and falls short of w hat is required for an upgrade in the characterization of service. 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, personal documentation submitted by the Applicant, and the administrative separation p rocess, the Board found Therefore, the awarded characterization of service shall UNDER OTHER THAN HONORABLE CONDITIONS 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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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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