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NAVY | DRB | 2013_Navy | ND1301158
Original file (ND1301158.rtf) Auto-classification: Denied

ex-YNSA, USN
Current Discharge and Applicant’s Request
Application Received: 20130422
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)        20071220 - 20080722     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20080723     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20110623      Highest Rank/Rate: YNSN
Length of Service: Y ear( s ) M onth( s ) 01 D a y ( s )
 Education Level:        AFQT: 48
Evaluation M arks:         Performance: 3.0 ( 4 )      Behavior: 2.0 ( 5 )        OTA: 2.87

Awards and Decorations ( per DD 214):     

Periods of C ONF :

NJP :

- 20110121 :      Article (Absence without leave , 2 specifications )
         Awarded: Suspended:

- 20110422 :      Article (Absence without leave)
          Awarded : Susp ended:

S CM :    SPCM:    C C :

Retention Warning Counseling :

- 20110131 :       For failure to go to appointed place of duty.

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 Sea Service Deployment Ribbon and sea time are not listed on his DD Form 214.
2 .        The Applicant contends mistreatment and poor leadership from his chain of command warrants consideration for an upgrade.
3 .       The Applicant contends his diagnosed mental health condition warrants consideration for an upgrade.
4 .       The Applicant contends he did everything his command told him to do , and he was unjustly discharged by his command.
Decision

Date : 20 1 4 0109             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 sta ndards 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 86 ( Absence without leave; 3 specifications). Based on the offense(s) committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant exercised right to consult with a qualified counsel, and submit a written statement . The Applicant was not entitled to an administrative board.

Issue 1: (Nondecisional) The Applicant contends his Sea Service Deployment Ribbon and sea time are not listed on his DD Form 214. These are issues that do not pertain to the propriety and equity of the Applicant’s discharge but can be addressed by applying to the Board for Correction of Naval Records using DD Form 149.
: (Decisional) ( ) . The Applicant contends mistreatment and poor leadership from his chain of command warrants consideration for an upgrade. The Applicant’s service record and record of administrative separation clearly shows he was repeatedly counseled by his command on his tardiness to work and his failure to report to his medical appointments. The record shows the Applicant’s command tried non-punitive solutions to correct the Applicant’s repeated behavioral problems , however, his misconduct persisted. The Applicant presented no evidence to the NDRB of mistreatment or unfair treatment by his command except the Applicant’s own statements. 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 issue. Relief denied.

: (Decisional) ( ) . The Applicant contends his diagnosed mental health condition warrants consideration for an upgrade. The Applicant was diagnosed by mental health specialists with Adjustment D isorder with mixed emotional features. However, the Applicant’s mental condition was not of such severity to warrant a recommendation for administrative separation as it was not determined to impair his ability to perform his military duties. There is no evidence in the record, nor did the Applicant provide any evidence to the NDRB, that he was not responsible for his actions or that he should not be held accountable for his multiple violations of the UCMJ and the good order and discipline of his unit. He did not warrant a medical discharge and was responsible for his actions. Relief denied.






Issue 4: (Decisional) ( ) . The Applicant contends he did everything his command told him to do , and he was unjustly discharged by his command. The Applicant’s record clearly shows that he had one retention warning for violation of Article 86, two NJPs for violations of Article 86, 11 records of counseling for repeated tardiness and other substandard behavior, one vacated suspension of punishment from NJP, and three recorded missed medical appointments. The evidence in the Applicant’s record clearly refutes his contention that he did everything he was told to do by his command and that he was unjustly discharged . What the record does show is that his command provided significant leadership and other resources to turn the Applicant into a productive Sailor, but his repeated failures led them to correctly discharge him for a Pattern of Misconduct. He was fortunate to have only received a General discharge. 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 29, effective 10 November 2009 until Present, 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

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