Upgrade.Vet

NAVY | DRB | 2013_Navy | ND1301838

Original file (ND1301838.rtf) Auto-classification: Denied

ex-PS3, USN

Current Discharge and Applicant’s Request

Application Received: 20130913

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 – PHYSICAL OR MENTAL CONDITIONS

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        2007 0725 - 20080603     Active:

Period of Service Under Review:
Date of Current Enlistment: 20080604     Age at Enlistment:
Period of E nlistment : Years 17 MONTHS Extension
Date of Discharge: 20120827      Highest Rank/Rate: PS3
Length of Service: Year(s) Month(s) 24 D ay(s)
Education Level:        AFQT: 70
Evaluation M arks:         Performance: 3.1 ( 8 )      Behavior: 3.0 ( 8 )        OTA: 3.11

Awards and Decorations ( per DD 214):      Pistol

Periods of UA /C ONF :

NJP :    S CM : SPCM:          C C :     Retention Warning Counseling:

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 36, effective 18 August 2011 until Present, 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.

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

Applicant’s Issues

1. The Applicant contends her discharge was based on an isolated incident in over 4 years of service with no other adverse action , and the incident was due to years of spousal abuse.
2. The Applicant cont ends s he suffered from depression due to a sexual assault, dissolved marriage, and being left alone to raise her infant daughter .
3. The Applicant contends her Narrative Reason for Separation on her DD Form 214 should be changed to “Convenience of the Government – Physical or Mental Conditions ” for her Adjustment Disorder diagnosis, for which the Department of Veterans Affairs (VA) has assigned a disability rating of 50%.

Decision

Date: 20 1 4 0501 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 no NAVPERS 1070/613 (Page 13) warnings and no misconduct resulting in nonjudicial punishment or court-martial. However, b ased on the wrongful use of inhalants, adultery, and making a false official statement, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board . Though her commanding officer notified her that he initially processed her to receive an Un der Other Than Honorable Conditions characterization of service for Misconduct (Serious Offense), he ultimately discharged her Under Honorable Conditions (General).

Issues 1-2: (Decisional) ( ) . The Applicant contends her discharge was based on an isolated incident in over 4 years of service with no other adverse action , and the incident was due to years of spousal abuse. She also contends she suffered from depression due to a sexual assault, dissolved marriage, and being left alone to raise her infant daughter . Despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Navy to maintain proper order and discipline. Wrongful use of inhalants, adultery, and making a false official statement as evidenced by a N aval Criminal Investigative Service investigation dated 20120229 are such offenses that warrant processing for administrative separation regardless of grade, performance, or time in service. This usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. However, her command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. On 8 August 2012, her commanding officer notified her of administrative discharge processing Under Other Than Honorable Conditions for Misconduct (Serious Offense). The Applicant acknowledged her rights, in writing, and elected to waive her rights to consult with counsel, to submit a written statement to the Separation Authority, and to appear before an administrative separation board.

A review of the Applicant’s service and medical records shows frequent visits to mental health counselors during her 4 years and 2 months of service. These visits document significant pre-service psychiatric issues that continued into service and were exacerbated by her sexual assault , spousal abuse , dissolved marriage, and raising an infant daughter by herself . However, nowhere in the records, either in-service or post-service, is there any indication that she was not responsible for her actions or should not be held accountable for her misconduct. When reviewing a discharge, the NDRB does consider the extent to which stress, spousal abuse, and sexual assault might affect an Applicant’s performance and ability to conform to the military’s standards

of conduct and discipline. It does appear that these factors were taken into consideration in the final assignment of her General characterization of service. While initially notified of separation Under Other Than Honorable Conditions for wrongful use of inhalants, adultery, and making a false official statement, her commanding officer likely took her personal stressors into consideration when assigning an Under Honorable Conditions (General) discharge characterization. After a thorough review of the records and the Applicant’s statements and post-service medical documentation and disability rating, the NDRB determined her discharge was warranted and proper and sufficient mitigation had been given when assigning her a discharge characterization Under Honorable Conditions (General). Further relief is not warranted. Relief denied.

: (Decisional) ( ) . The Applicant contends her Narrative Reason for Separation on her DD Form 214 should be changed to “Convenience of the Government – Physical or Mental Conditions” for her Adjustment Disorder diagnosis, for which the VA has assigned a disability rating of 50%. Department of Defense regulations provide that disciplinary separations supersede disability separations. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Additionally, t he NDRB is not bound by VA decisions, nor do VA decisions have any bearing on the decisions of the NDRB. Decisions reached by the U.S. Department of Veterans Affairs (VA) to determine if former servicemembers rate certain VA benefits do not affect previous discharge decisions made by the Navy. 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 determined her Narrative Reason for Separation was properly assigned, and no change to the DD Form 214 is warranted. R elief 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 | 2013_Navy | ND1301838

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