Upgrade.Vet

NAVY | DRB | 2014_Navy | ND1400026

Original file (ND1400026.rtf) Auto-classification: Denied

ex-BMSR, USN

Current Discharge and Applicant’s Request

Application Received: 20131016

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)        19990630 - 20000618     Active:

Pre-Service Drug Waiver:

Period of Service Under Review:
Date of Current Enlistment: 20000619     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20100308      Highest Rank/Rate: BM3
Length of Service : Y ear s M onth s 18 D a ys
Education Level:        AFQT: 39
Evaluation M arks:         Performance: 3.5 ( 2 )      Behavior: 3.5 ( 2 )        OTA: 3.15

Awards and Decorations ( per DD 214):

Periods of UA /C ONF :

Period on Appellate Leave: 20020606 - 20100308

NJP: SCM: CC: NONE Retention Warning Counseling: NONE

SPCM:

- 20021219 :       Art icle 80 ( Attempts , 2 specifications )
         Specification 1: did, on or about 12 September 2002 , attempt to steal cash, of a value of about $550.00, the property of Navy Federal Credit Union
         Specification 2: did, on or about 16 September 2002 , attempt to steal cash, of a value of about $150.00, the property of Armed Forces Bank
         Art icle (Absence without leave , 2 specifications )
         Specification 1: did, on or about 16 August 2002, without authority, absent herself from her unit, to wit: USS JOHN C. STENNIS (CVN 74) and did remain so absent until on or about 08 September 2002
         Specification 2: did, on or about 8 September 2002, without authority, absent herself from her unit, to wit: USS JOHN C. STENNIS (CVN 74) and did remain so absent until on or about 07 October 2002
         Article (Wrongful use, possession, etc., of controlled substances; Marijuana)
         Article ( Larceny, wrongful appropriation , 2 specifications )
         Specification 1: did, on or about 09 September 2002, steal a checkbook, of some value, the property of __
         Specification 2: did, on or about 11 September 2002, steal cash, of a value of about $500.00, the property of Navy Federal Credit Union
         A rticle (Forgery , did, on or about 11 September 2002, with the intent to defraud, utter a certain check upon Washington Mutual Bank )
         Sentence : CONF 60 days FINE $500
         Convening Authority Action: sentence approved with exception; BCD disapproved

Administrative Corrections to the Applicant’s DD 214

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

         “ MILPERSMAN 1910-146 ”

The NDRB will recommend to the Commander, Navy Personnel Command, PERS- 312A, 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. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 29, effective 10 November 2009 until Present, Article 1910-146, SEPARATION BY REASON OF MISCONDUCT - DRUG ABUSE.

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 the Department of Veterans Affairs (VA) found her service to be honorable.
2 .       The Applicant contends she was sexually assaulted while in service.

Decision

Date: 20 1 4 0508             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 Post-Traumatic Stress Disorder (PTSD), in accordance with U.S. Code, Title X, Section 1553(d)(1), the Naval Discharge Review Board reviewed the Applicant's record to see if she deployed in support of a contingency operation and was, as a consequence of that deployment, diagnosed with either PTSD or Traumatic Brain Injury. A review of her record revealed that she did not deploy in support of a contingency operation, and so her case did not warrant an expedited review in accordance with U.S. Code, Title X, Section 1553(d)(1).

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 sta ndards of equity and propriety. The Applicant’s record of service included for of the UCMJ : Article 80 (Attempts, 2 specifications), Article 86 (Absence without leave, 2 specifications), Article 112a (Wrongful use, possession, etc., of controlled substances , marijuana ), Article 121 (Larceny, wrongful appropriation , 2 specifications), and Article 123 (Forgery). As a result of the Special Court-Martial conviction, the Applicant was reduced in rank to E-1, fined, confined, and awarded a Bad Conduct Discharge, which was disapproved by the Convening Authority. The Applicant was then administratively discharged for Misconduct (Drug Abuse) based on her Article 112a violation. When notified of administrative separation processing using the procedure, the Applicant , in accordance with a pre-trial agreement , right to appear before a n administrative separation board .

Issue 1: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends the VA found her service to be honorable. The 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. Relief denied.

: (Decisional) ( ) . The Applicant contends she was sexually assaulted while in service . The Applicant submitted documentation from the VA that states the VA considers her period of service Honorable due to evidence that shows she reported being sexually assaulted on 29 October 2000. The VA document further states , “ Y our service treatment records show that on November 2, 2000 you were referred to Medical by your chain of command, and on November 8, 2000, you were seen for psychosocial evaluation where the medical social worker felt that you had PTSD related to the recent sexual assault . ” 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 her issue. The NDRB requested , but did not receive, the Applicant’s medical treatment records . T here is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that a sexual assault mitigates her misconduct of record. The Applicant was found guilty at a Special Court-Martial of violating UCMJ Articles 80, 86, 112a, 121, and 123. The VA documentation submitted by the Applicant does not overcome the government’s presumption of regularity in this case. The NDRB determined PTSD did not mitigate her 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.

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 | 2014_Navy | ND1400026

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