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NAVY | DRB | 2013_Navy | ND1300307
Original file (ND1300307.rtf) Auto-classification: Denied

ex-LSSA, USN
Current Discharge and Applicant’s Request
Application Received: 20121127
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)        20081105 - 20090526     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20090527     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20110923      Highest Rank/Rate: LSSA
Length of Service: Y ear s M onth s 27 D a ys
Education Level:        AFQT: 62
Evaluation M arks:         Performance: 3.0 ( 3 )      Behavior: 3.0 ( 2 )        OTA: 2.68

Awards and Decorations ( per DD 214):      Rifle Pistol

Periods of UA /C ONF :

NJP :

- 20110804 :      Article (Failure to obey order or regulation , 2 specifications )
         Awarded: Suspended:

S CM :    SPCM:    C C :

Retention Warning Counseling :

- 20110615 :       Details not found in record. Date extracted from Commanding Officer letter dated 20110906

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 in-service conduct warrants an upgrade to Honorable.
2.       The Applicant contends he was harassed and humiliated by members of his command.
3.       NDRB Issue: The Applicant’s Narrative Reason for Separation is incorrect.
Decision

Date: 20 1 3 0821             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. 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 NAVP ERS 1070/613 (Page 13) warning and for o f the Uniform Code of Mi litary Justice (UCMJ): Article 92 ( Failure to obey order or regulation). The Applicant was separated for a P ersonality D isorder. When notified of administrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel and request a General Court-Martial Convening Authority review , but exercised his right to submit a written statement .

: (Decisional) ( ) . The Applicant contends his in-service conduct warrants an upgrade to Honorable. The Applicant cites inconsistencies in his evaluation reports such as overlapping reports, reports submitted without his signature, and inaccurate reports. Despite the Applicant’s contention that his evaluation reports inaccurately represent his quality of service, the NDRB concluded that his evaluation reports on record do not negatively impact his characterization of service. The Applicant’s final overall trait average is 2.68, which by its own merit warrants an Honorable discharge characterization. However, the Applicant was found guilty at NJP of two violations of UCMJ Article 92 (Failure to obey order o r regulation) . 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. T he NDRB determined the Applicant’s service was honest and faithful but significant negative aspects of his conduct or performance of duty outweighed the positive aspects of his service record, and the awarded characterization of service was warranted. Relief denied.

: (Decisional) ( ) . The Applicant contends he was harassed and humiliated by members of his command. The record contained no evidence of any wrongdoing by the Applicant’s commanding officer or anyone else in the discharge process or during his enlistment . The NDRB presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. The NDRB determined the Applicant’s discharge was warranted, proper, and equitable. Relief denied.

: (Decisional) ( NDRB Issue) ( ) . During the review of the Applicant’s records, the NDRB identified an impropriety in his discharge narrative reason for separation. The Applicant was separated by reason of Personality Disorder in accordance with Naval Military Personnel Manual (MILPERSMAN) Article 1910-122 . However, the Applicant’s service record contains documentation that indicates he was diagnosed by a staff psychiatrist at N aval Medical Center Portsmouth on 22 July 2011 with an Adjustment Disorder with disturbance of emotions an d conduct and was recommended for administrative separation for a Condition, Not a Disability per MILPERSMAN Article 1910-120. Paperwork in his records shows his command improper ly discharged him for Personality Disorder instead of for Condition, Not a Disability. However, since he was not notified of Condition, Not a Disability as a basis for discharge, the NDRB voted to change his Narrative Reason for Separation to Secretarial Authority. Partial relief granted.

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 that although discharge was warranted and the characterization of service was equitable, the Narrative Reason for Separation was incorrect. Therefore, the awarded characterization of service shall but the N arrative R eason for S eparation shall change to SECRETARIAL AUTHORITY. 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 15560D), Change 28, effective 21 August 2009 until Present, Article 1910-122, Separation By Reason of Convenience of the Government - Personality Disorder(s).
B. Naval Military Personnel Manual, (NAVPERS 15560C), change 35 effective 25 April 2011 until Present, Article 1910-120, SEPARATION BY REASON OF CONVENIENCE OF THE GOVERNMENT - PHYSICAL OR MENTAL CONDITIONS.

C . 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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