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NAVY | DRB | 2011_Navy | ND1102118
Original file (ND1102118.rtf) Auto-classification: Denied

ex-GMSA, USN
Current Discharge and Applicant’s Request
Application Received: 20110914
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)        20010503 - 20010521     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20010522     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20031201      Highest Rank/Rate: GMSN
Length of Service: Y ear( s ) M onth( s ) 10 D a y ( s )
 Education Level:        AFQT: 58
Evaluation M arks:         Performance: 2.5 ( 4 )      Behavior: 2.5 ( 4 )        OTA: 2.62

Awards and Decorations ( per DD 214):     

Periods of C ONF :

NJP :
- 20031114 :      Article (Absence without leave, 7 specifications )
         Article (Failure to obey an order or regulation, 2 specifications )
         Articl e 107 (False official statement )
         Awarded: NFIR Suspended: NFIR
         [ * Extracted from Evaluation Report and C ounseling Record dated 20031201 ]

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 1910-138 ”

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 :        


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

Applicant’s Issues

 1.        Applicant seeks a discharge upgrade to obtain veteran’s benefits.
2.       Applicant contends his discharge should have been based on medical reasons.
3.       Applicant contends prescribed medications caused him to oversleep , which led to the unauthorized absences for which he was discharged.
Decision

Date: 20 1 2 1004             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. Although the Applicant’s service records are incomplete (missing administrative separation documentation to include: notification of administrative separation and acknowledgment of rights forms, commanding officer comments and endorsement, and the Separation Authority decision letter), the Board completed a thorough review of the available documentation to determine whether discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included nonjudicial punishment (NJP) for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave, 7 specifications) , Article 92 ( Failure to obey an order or regulation, 2 specifications ), and Article 107 (False official statement ) . T he Applicant ’s service and medical records also revealed he was diagnosed with Tourettes syndrome and A ttention D eficit D isorder (ADD) as a teenager. Although not clear from the available documentation, the records seem to indicate the Applicant was previously denied enlistment into the U.S. Army (1999) and U.S. Marine Corps (2001) based on his preexisting medical diagnoses prior to entering the Navy . Based on the in-service offenses committed by the Applicant (as evidenced by the findings at commanding officer’s NJP) , the Applicant’s command processed him for administrative separation from the Navy. Since the NDRB did not have the Applicant’s administrative separation package documentation available to review, it could not determine whether the Applicant exercised or waived his rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review . In an Evaluation Report located within the service record , dated 3 April - 1 December 2003, the Reporting Senior stated , “(The Applicant) is a below average performer who is unable to complete the simplest of tasks without constant supervision and guidance. He has not been able to grasp the ‘team player’ attitude and is constantly disrespectful to both his peers and subordinates alike. He has singlehandedly disrupted the smooth day-to-day operation of the Training Division. ” The Applicant was separated from the Navy on 1 December 2003 with a General (Under Honorable Conditions) discharge due to Misconduct (Minor Disciplinary Infractions).

: (Nondecisional) The Applicant seeks a discharge upgrade to obtain veteran’s 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. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities as r egulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.
: (Decisional) ( ) . The Applicant contends his discharge should have been based on medical reasons. In reviewing discharges, the NDRB presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. DoD disability regulations do not preclude a disciplinary separation , which takes precedence over a medical separation . Moreover, per the applicable regulations, 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 B oard for Correction of Naval Records can grant this type of narrative reason change. Relief denied.

: ( Decisional) ( ) . The Applicant contends prescribed medications caused him to oversleep , which led to the unauthorized absences for which he was discharged. T he Board conducted a detailed review of the Applicant’s records to determine whether his discharge met the pertinent standards for propriety and equity. Since the Applicant’s service records were incomplete, the NDRB could not determine the effect that prescribed medications may have had on the Applicant’s conduct. However, a lthough the record indicates he was found guilty at NJP of violating seven specifications of UCMJ Article 86 (UA) , which the Applicant claims was a result of prescribed medications , the record also indicated the Applicant was found guilty of two specifications of Article 92 (Failure to obey an order or regulation ) and violation of Article 107 (False official statement). Moreover, the Applicant’s final Evaluation Report, dated 3 April - 1 December 2003, contained several negative statements concerning the Applicant’s disrespectful and disruptive behavior.

 Per the Naval Military Personnel Manual, when a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under Honorable 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. The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to m aintain the requirements of conduct expected of all Sailors and falls short of w hat is required for an upgrade in the characterization of service to Honorable .

In conducting the review of the Applicant’s record of service, however, the NDRB noted that the Applicant’s records did not contain a NAVPERS 1070/613 Retention Warning, which is a requirement before processing a Sailor for administrative separation under Naval Military Personnel Manual Article 1910-138 (Minor Disciplinary Infractions). Accordingly, and a fter careful consideration of all the available evidence, the NDRB determined that the n arrative r eason for discharge shall change to Secretarial Authority. Partial relief warranted.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, and medical r ecord e ntries, the Board found the discharge was improper , though warranted . Therefore, the awarded characterization of service shall but the narrative reason for separation shall change to . The Applicant is encourage d and 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.

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 25 April 2005, Article 1910-138, SEPARATION BY REASON OF MISCONDUCT - MINOR DISCIPLINARY INFRACTIONS.

 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 .




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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