Upgrade.Vet

NAVY | DRB | 2012_Navy | ND1201480

Original file (ND1201480.rtf) Auto-classification: Denied

ex-MM2, USN

Current Discharge and Applicant’s Request

Application Received: 20120627

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to:       CONVENIENCE OF THE GOVERNMENT

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        19971017 - 1998030 2     Active:          1998030 3 - 20000306

Period of Service Under Review:
Date of Current Enlistment: 20000307     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20030513      Highest Rank/Rate: MM1
Length of Service: Y ear( s ) M onth( s ) 06 D a y ( s )
Education Level:        AFQT: 80
Evaluation M arks:         Performance: 3.7 ( 6 )      Behavior: 3.2 ( 6 )        OTA: 3.24

Awards and Decorations ( per DD 214):

Periods of UA /C ONF :

NJP :

- 20030211 :      Article (Assaulting or willfully disobeying superior commissioned officer)
         Awarded: Suspended:

- 20030411 :      Article (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer)
         Awarded : Susp ended: 3 DAYS 1 MONTH

S CM :    SPCM:    C C :

Retention Warning Counseling :

- 20030211 :       For willfully disobeying superior commissioned officer.

Administrative Corrections to the Applicant’s DD 214

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

         “ 05 02 11 ”
         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 98030 3 UNTIL 000306 ”
         “ PATTERN OF 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 1910-140, 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 contends her discharge is inequitable , because the military no longer forces service me mbers to get anthrax and small pox vaccines.
2.       The Applicant contends her command retaliated against her for refusing to get v accinated for anthrax and small pox and for reporting sexual harassment.
3.       The Applicant contends she served honorably and received many awards and certifications.
4.       The Applicant contends her personal problems impaired her ability to serve.
5 .       The Applicant contends she should have been discharged for a diagnosed P ersonality D isorder instead of for misconduct.

Decision

Date : 20 1 3 0418             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 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 90 ( Assaulting or willfully disobeying superior commissioned officer , 1 specification of disobeying a commissioned officer by refusing vaccinations) and Article 91 ( Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer , 1 specification of saying to a chief petty officer , “You are a sick perverted fuck” and “I refuse to work for you.” 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 . The Applicant was not entitl ed to an administrative board.

: (Decisional) ( ) . The Applicant contends her discharge is inequitable , because the military no longer forces service me mbers to get anthrax and small pox vaccines. The legal issues surrounding the Anthrax Vaccine Immunization Program for Department of Defense personnel are not within the scope of the NDRB’s authority. The Applicant had a legal obligation under the UCMJ to follow the lawful orders of the President of the United States, and the orders of the officers appointed over her. Her command acted properly in enforcing lawful orders and regulations as given through the proper chain of command. The Applicant refused a lawful order from her chain of command. She acted willfully and with complete knowledge that her actions were contrary to the oath she took as a member of the armed forces. The NDRB determined that her contention does not warrant an upgrade of her discharge. Relief denied.

: (Decisional) ( ) . The Applicant contends her command retaliated against her for refusing to get vaccinated for anthrax and smallpox and for reporting sexual harassment. Although the Applicant may feel her command was against her for refusing to follow orders, there is no evidence in the record, and the Applicant does not provide any evidence , to show she was treated unfairly. The Applicant’s record indicates she was properly charged with misconduct and was afforded an opportunity at NJP to refute the charges. She was afforded the opportunity to speak to legal counsel but waived her right . Her command acted in accordance with proper legal procedures, and her punishment was within the standards of the UCMJ and the Manual for Courts-Martial . The Applicant had the right to appeal her punishment at NJP to the next higher commanding officer in her chain of command, and she also had the right to request mast if she felt her rights were being abused. There is no indication she took these steps at the time. 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. Relief denied.

Issue 3: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends she served honorably and received many awards and certifications. The Applicant received an Honorable discharge for her first enlistment from March 1998 to March 2000. Each period of enlistment is an independent obligation and characterization is determined for that specific period of time. During her second enlistment, the Applicant had an NJP - Page 13 retention warning - NJP. The Applicant was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation. The characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation. Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition. Based on the Applicant’s record of service, the NDRB determined the Applicant’s service was honest and faithful but significant negative aspects of her conduct or performance of duty outweighed the positive aspects of her service record in the current enlistment, and the awarded characterization of service was warranted. Relief denied.

Issue 4: (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant contends her personal problems impaired her ability to serve. The NDRB recognizes that serving in the military is challenging. Most servicemembers, however, serve honorably and therefore earn their Honorable discharges. In fairness to those servicemembers, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. There is no evidence in the record, nor did the Applicant provide any documentation, to indicate she attempted to use the numerous services available for servicemembers who undergo personal problems during their enlistments, such as the Navy Chaplain, Medical or Mental Health professionals, Navy Relief Society, Family Advocacy Programs, or even the Red Cross. The NDRB determined the Applicant’s personal problems were not mitigating factors in her misconduct. Relief denied.

Issue 5: (Decisional) ( ) . The Applicant contends she should have been discharged for a diagnosed P ersonality D isorder instead of for misconduct. The Applicant was diagnosed in April 2003 by a clinical psychiatrist as having a Personality Disorder Not Otherwise Specified with Histrionic and Borderline T raits. She was recommended for administrative separation. Personality Disorder is a long-standing disorder of one’s personality that develops in childhood and does not necessarily preclude one from military service. Per Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 19 June 2005, Article 1910-122, Separation By Reason of Convenience of the Government - Personality Disorder(s), members may be processed for separation based on a clinical diagnosis of a Personality Disorder when the disorder is so severe that the member ’ s ability to function effectively in the naval environment is significantly impaired, and the impairment interferes with the member ’ s performance of duty, or poses a threat to the safety or well-being of the member or others, and the member has not responded to leadership and counseling. Per Article 1910-122, s eparation for P ersonality D isorder is not appropriate when separation is warranted for any other reason (e.g., member meets minimum criteria for misconduct processing). With the Applicant’s two NJPs and a Page 13 retention warning in her current enlistment, she met the requirements for administrative separation for Misconduct (Pattern of Misconduct) and Misconduct (Serious Offense). Her discharge was proper and equitable. 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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NAVY | DRB | 2012_Navy | ND1201480

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