Search Decisions

Decision Text

NAVY | DRB | 2012_Navy | ND1200531
Original file (ND1200531.rtf) Auto-classification: Denied

ex-GMSA, USN
Current Discharge and Applicant’s Request
Application Received: 20120110
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)        20070629 - 20071128     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20071129     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20090714      Highest Rank/Rate: GMSN
Length of Service: Y ear( s ) M onth( s ) 16 D a y ( s )
 Education Level:        AFQT: 57
Evaluation M arks:         Performance: 1.5 ( 2 )      Behavior: 1.5 ( 2 )        OTA: 2.00

Awards and Decorations ( per DD 214):      Rifle Pistol

Periods of C ONF :

NJP :

- 2009041 3 :      Article (Failure to obey order or regulation - providing alcohol to a minor )
         Awarded: Suspended:

- 20090624 :      Article 86 (Absence without leave )
         Article (Failure to obey order or regulation , 2 specifications )
         Specification 1: Wearing hair style in the form of a Mohawk
         Specification 2: W r ongfully going to 9 / 11 Park, which was not his place of duty
         Awarded : Susp ended: Suspension vacated 20090626

S CM :    SPCM:    C C :

Retention Warning Counseling :

- 20090413 :       NFIR [Date extracted from Commanding Officer’s letter dated 20090702.]

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.        The Applicant contends his misconduct was the result of Traumatic Brain Injury (TBI) he suffered from a vehicle accident while in service.

Decision

Date : 20 1 3 0117             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall .

Discussion

 As a result of the Applicant’s claim of TBI, in accordance with U.S. Code, Title X, Section 1553 (d)(1), the Naval Discharge Review Board included a member who is a physician, clinical psychologist, or psychiatrist. In accordance with section 1553 (d)(2), the service secretary expedited a final decision and accorded the case sufficient priority to achieve an expedited resolution. During the Applicant’s 19 months of service, he deployed as part of the crew of the USS ABRAHAM LINCOLN in support of Operation Iraqi Freedom and Operation Enduring Freedom. His diagnosed TBI, however, resulted from an automobile accident in the United States.

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 discharg e 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 . T he Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) warning and for o f the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey order or regulation, three specifications ) and Article 86 ( Absence without leave ) . Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel and submit a written statement .

: (Decisional) ( ) . The Applicant contends his misconduct was the result of TBI he suffered from a vehicle accident while in service. The Applicant w as involved in a vehicle accident on 18 December 2008 and subsequently suffered from TBI and chronic back and neck pain. He contends he suffered from loss of memory, migraines, seizures, and other problems. The Department of Veterans Affairs evaluated the Applicant post-service and awarded him 80% total disability ( 40% for TBI ), effective on 15 July 2009. A complete review of the Applicant’s records reveals he demonstrated poor performance throughout his 19 months in the Navy. An evaluation from 30 January 2008 to 28 February 2009 marked him as having “Significant P roblems” in the Promotion Recommendation section and noted that “If not supervised with scrutiny, he will not accomplish tasks to a satisfactory level. Encompasses numerous hours from divisional leadership, contributing in the loss of crucial resources to the work center’s mission. ” and “Unable to assume a leadership role. His actions are currently not aligned with Navy core values and a promotion would undermine the integrity and character of Petty Officers throughout the command. ” and “Requires constant motivation to correct unauthorized absences and delinque n cy in completing qualifications , contributing to the increased man hours per person for watch station and maintenance requirements, resulting in the decrease of the division’s morale and quality of life.” Nowhere in the evaluation is there any mention of mitigating factors such as an automobile accident. In the Applicant’s evaluation f rom 01 March 2009 to 29 May 2009, the R eporting S enior noted , “ He continually denies responsibility for his personal actions and professional development after continuous counseling and mentoring.” After establishing a Pattern of Misconduct with an NJP - Page 13 counseling - NJP, his command notified him of processing for administrative separation. In the separation package, his Commanding Officer wrote th at the Applicant “lacks integrity and his conduct during his entire military career has been marked with significant problems and is determined to be contrary to good order and discipline in the United States Navy. ” Nowhere in either evaluation or the administrative separation package is there any mention of mitigation of his misconduct due to TBI. Though the Applicant may believe that TBI was the underlying cause of his misconduct, the record reflects willful misconduct that demonstrated he was unfit for further service.

The evidence of record did not show the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. The Applicant was found guilty at NJP for providing alcohol to a minor, wrongfully wearing a hairstyle in the form of a Mohawk, wrongfully going to a place that was not his place of duty, and being absen t without leave. The NDRB determined t hese violations were all conscious decisions to violate the tenants of honorable and faithful service and further determined his TBI did not mitigate his misconduct. 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.

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 23, effective 20 May 2008 until 9 November 2009, 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 .



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

Similar Decisions

  • USMC | DRB | 2009_Marine | MD0900987

    Original file (MD0900987.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated to Military Service: DD 214:Service/Medical Record:Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Substance Abuse: Criminal Records: Family/Personal Status: Community Service: References: Additional Statements:From Applicant:From Representation:From Congress member:Other Documentation: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL...

  • NAVY | DRB | 2014_Navy | ND1400031

    Original file (ND1400031.rtf) Auto-classification: Denied

    Relief 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 .The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. ” Additional Reviews : After a document review has been conducted, former members are...

  • NAVY | DRB | 2008_Navy | ND0801044

    Original file (ND0801044.rtf) Auto-classification: Denied

    The Board determined the Applicant’s conduct, which forms the primary basis for determining the character of his service, reflected a significant departure from the conduct expected of an officer and the awarded characterization was appropriate; an upgrade would be inappropriate.After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found ADDENDUM: Information for...

  • USMC | DRB | 2014_Marine | MD1400996

    Original file (MD1400996.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. ” 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. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.

  • NAVY | DRB | 2012_Navy | ND1201162

    Original file (ND1201162.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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: DEPARTMENT OF THE NAVY NAVAL DISCHARGE REVIEW BOARD...

  • USMC | DRB | 2010_Marine | MD1002021

    Original file (MD1002021.rtf) Auto-classification: Denied

    Relief denied.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 .The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. ” Additional Reviews : After a document review has been conducted, former members are eligible...

  • USMC | DRB | 2015_Marine | MD1400955

    Original file (MD1400955.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. The Separation Authority subsequently discharged the Applicant UNDER OTHER THAN HONORABLE conditions. ” 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.

  • USMC | DRB | 2013_Marine | MD1301375

    Original file (MD1301375.rtf) Auto-classification: Denied

    The NDRB determined neither TBI nor psychological disabilities mitigated his misconduct and further determined he engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service.Relief 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...

  • USMC | DRB | 2009_Marine | MD0900397

    Original file (MD0900397.rtf) Auto-classification: Denied

    The Applicant’s service medical record, which was reviewed by the NDRB in determining the Applicant’s case, was very limitedin content. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record, Discharge Process and evidence submitted by the Applicant, the Board found ADDENDUM: Information for the Applicant Complaint Procedures : If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not...

  • NAVY | DRB | 2012_Navy | ND1201142

    Original file (ND1201142.rtf) Auto-classification: Denied

    The criteria used by the VA in determining whether a former servicemember is eligible for benefits are different than that used by the Navy when determining a member’s discharge characterization.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. Relief denied.Summary: After a thorough review of the available evidence, to include the...