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NAVY | DRB | 2012_Navy | ND1200019
Original file (ND1200019.rtf) Auto-classification: Denied

ex-SR, USN
Current Discharge and Applicant’s Request
Application Received: 20110928
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)        19971222 - 19971228     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 19971229     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 200 1 1012      Highest Rank/Rate: IT3
Length of Service: Year(s) Month(s) 14 D ay(s)
 Education Level:        AFQT: NFIR
Evaluation M arks:         Performance: NFIR         Behavior: NFIR   OTA: NFIR

Awards and Decorations ( per DD 214):      USCGMUC

Periods of C ONF :

NJP :

- 20000901 :      Article (Absence without leave)
         Awarded: Suspended: Suspension vacated 20001116

- 20001208 :      Article (Absence without leave, 2 specif ications )
         Specification 1: 0700-0745, 20001116, 45 minutes
         Specification 2: 0730-0830, 20001126, 1 hour
         Awarded: Suspended:

- 20010418 :      Article (Absence without leave, 0730-0845, 20010310, 1 hour, 15 minutes)
         Awarded: Suspended: Suspension vacated 20010614

- 20010614 :      Article (Absence without leave 0730, 20010513 - 0600, 20010514 )
         Article (Drunken or reckless operation of vehicle, aircraft, or vessel)
         Awarded: Suspended:

S CM :    SPCM:    C C :

Retention Warning Counseling:

- 20010606 :      For unauthorized absence.






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), Change 31, effective 25 January 2001 until 21 August 2002, 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 111 .



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

Applicant’s Issues

 1.       The Applicant wants his Top Secret clearance reinstated.
2.       The Applicant wants his former rating as an Information Systems Technician and pay grade (E-4) reinstated.
3.       The Applicant contends his command did not recognize his depression in a timely manner, leaving him untreated and neglected , and his command failed to help him with treatment for his depression.
 4 .       The Applicant contends his misconduct was due to depression and symptoms of schizophrenia.
 5 .       The Applicant contends the positive aspects of his record of service warrant consideration for upgrading his discharge.
 6 .       The Applicant contends his p ost-service conduct warrants consideration for upgrading his discharge .
Decision

Date: 20 1 2 1109             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’s record of service included NAVPERS 1070/613 (Page 13) warning and four non-judicial punishments (NJP) for violations of o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Unauthorized absence, 5 specifications ) and Article 111 (Drunken or reckless operation of a vehicle, 1 specification). Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant exercised his right to consult with a qualified counsel but w aived his right to submit a written statement .

: (Non - decisional) The Applicant wants his Top Secret clearance reinstated. The NDRB has no authority to reinstate a former service member’s security clearance. Therefore, this issue does not serve to provide a foundation upon which the NDRB can grant relief. Regulation limits the NDRB’s review to the propriety and equity of the discharge. Concerns regarding this matter can be addressed to the Board for Correction of Naval Records (http://www.donhq.navy.mil/bcnr/bcnr.htm) .

: (Non-decisional) The Applicant wants his former rating as an Information Systems Technician and pay grade (E-4) reinstated. The NDRB has no authority to reinstate a former service member’s rank, rating, or pay grade. Therefore, this issue does not serve to provide a foundation upon which the NDRB can grant relief. Regulation limits the NDRB’s review to the propriety and equity of the discharge. Concerns regarding this matter can be addressed to the Board for Correction of Naval Records (http://www.donhq.navy.mil/bcnr/bcnr.htm).

: (Decisional) ( ) . The Applicant contends his command did not recognize his depression in a timely manner, leaving him untreated and neglected , and his command failed to help him with treatment for his depression. 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. There is no evidence in the record, nor has the Applicant produced any evidence, to support his contention s . The Applicant’s statement s alone do not overcome the government’s presumption of regularity in this case. Therefore, the NDRB relied upon the presumption of regularity in the conduct of government affairs and concluded that relief based on this issue was not warranted. Relief denied.






Issue 4 : (Decisional) ( ) . The Applicant contends his misconduct was due to depression and symptoms of schizophrenia . 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, nor the medical treatment given to the Applicant to be of sufficient nature to exculpate the misconduct. After a complete review of the records, the NDRB determined his medical problems did not mitigate his misconduct, he was responsible for his actions, and an upgrade is not warranted. Relief denied.

Issue 5 : (Decisional) ( ) . The Applicant contends the positive aspects of his record of service warrant consideration for upgrading his discharge. Despite the positive aspects of a service member’s record of service, certain serious offenses warrant separation from the Navy to maintain proper order and discipline. Violation of Article 111 of the UCMJ is such an offense. Drunken or reckless operation of a motor vehicle usually results in an unfavorable characterization of discharge, or at a maximum, can result in a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. In addition to the violation of Article 111, the Applicant had five violations of Article 86 of the UCMJ. However, his command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. The NDRB is convinced his command did consider his entire record when characterizing his service. Therefore, relief based on this issue is not warranted. Relief denied.

Issue 6 : (Decisional) ( ) . The Applicant contends his post-service conduct warrants consideration for upgrading his discharge , as he states he is a changed man and is undergoing treatment for his depression and schizophrenia. The NDRB considers 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. The Applicant provided personal statements, evidence of community service, and evidence of college enrollment and attendance. To warrant an upgrade, the Applicant’s post-service efforts need to be more encompassing. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum with the recognition 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-service conduct establishes that the in-service misconduct was an aberration. The Board concluded that the documentation submitted by the Applicant does not demonstrate his in-service misconduct was an aberration. Therefore, relief based on this issue is not warranted. 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), 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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