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NAVY | DRB | 2014_Navy | ND1400387
Original file (ND1400387.rtf) Auto-classification: Denied

ex-ACAN, USN
Current Discharge and Applicant’s Request
Application Received: 20131224
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)        20100107 - 20100711     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20100712     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20130826      Highest Rank/Rate: AC3
Length of Service: Y ear( s ) M onth( s ) 19 D a y ( s )
 Education Level:        AFQT: 72
Evaluation M arks:         Performance: 3.17 ( 6 )     Behavior: 2.33 ( 6 )       OTA: 2.83

Awards and Decorations ( per DD 214):      Pistol

Periods of C ONF :

NJP :

- 20121112 :      Article 92 (Failure to obey order or regulation)
         Article 111 (Drunken or reckless operation of vehicle, aircraft, or vessel)
         Awarded: Suspended:

- 20130726 :      Article 92 (Failure to obey order or regulation, operating a vehicle on Naval Air Station Key West, Florida)
         Awarded: Suspended:

S CM :    SPCM:    CC:

CIVIL ARREST:

- 20111228 :       Charges: Driving Under the Influence

- 20121020 :       Charges: Driving Under the Influence

Retention Warning Counseling :

- 20130726 :       For your NJP of 20130726 for violation of the UCMJ: Article 92







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), 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, Article s 92 and 111 .



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

Applicant’s Issues

 1.        The Applicant seeks to use the GI Bill.
2.       The Applicant contends medical authorities misdiagnosed and over medicated him.
3.       The Applicant contends his command was biased against him since he was on limited duty.
4.       The Applicant contends he was discharged based on two DUIs for which he had been found not guilty.
5.       The Applicant contends he should have received a medical discharge.
6.       The Applicant contends his medical condition , including a Traumatic Brain Injury (TBI), mitigates his misconduct.
Decision

Date : 20140710             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 TBI , in accordance with U.S. Code, Title X, Section 1553(d)(1), the Naval Discharge Revi ew Board reviewed the Applicant’ s record to see if he deployed in support of a contingency operation and was, as a consequence of that deployment, diagnosed with either P ost-Traumatic Stress Disorder (PTSD) or TBI. A review of his record revealed that he did not deploy in support of a contingency operation, and so his case did not warrant an expedited review in accordance with U.S. Cod e, Title X, Section 1553(d)(1). T he Naval Discharge Review Board , however, included a Navy psychiatrist due to his claim of TBI.
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. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) warning, for o f the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation, 2 specifications) and Article 111 (Drunken or reckless operation of vehicle, aircraft, or vessel) , and two civilian arrests for Driving Under the Influence. 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, submit a written statement, and request a General Court-Martial Convening Authority review .

: (Nondecisional) The Applicant seeks to use the GI Bill. 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.
Issues 2-3 : (Decisional) ( ) . The Applicant contends medical authorities misdiagnosed and over medicated him. The Applicant further contends his command was biased against him since he was on limited duty. The record contained no evidence of any wrongdoing by medical authorities, the Applicant’s command, or anyone else in the discharge process. The NDRB presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. The NDRB did note that his command leniently discharged him with a General discharge, as misconduct of the severity and frequency exhibited by the Applicant typically results in an Under Other Than Honorable Conditions characterization of service. After reviewing the Applicant’s records and the substantial documentation and statements submitted by the Applicant, t he NDRB determined his discharge was proper and equitable. Relief denied.






4 : (Decisional) ( ) . The Applicant contends he was discharged based on two DUIs for which he had been found not guilty. The Applicant further contends he is innocent of his violation of Article 92 (Failure to obey order or regulation, operating a vehicle on Naval Air Station Key West, Florida) . In accordance with Naval Military Personnel Manual Article 1910-142, servicemembers may be separated based on the commission of a serious military or civilian offense when the commanding officer believes the specific circumstances of the offense warrant separation and the offense would warrant a punitive discharge if adjudicated at trial by court-martial for the same or closely related offense. Commission of a serious offense does not require adjudication by nonjudicial or judicial proceedings or civilian conviction, however, the offense must be substantiated by a preponderance of evidence. The record of evidence clearly shows the Applicant waived his rights to trial by court-martial. If the Applicant felt he was mistakenly charged with a crime, it was his obligation to contest those charges at the time they were made. During a court-martial , he would have had the opportunity to mount a defense against the charges. The statements and documents provided by the Applicant do not refute the presumption of regularity in this case. After reviewing the substantial documentation and statements provided by the Applicant, the NDRB determined his discharge was proper and equitable. Relief denied.

5 : (Decisional) ( ) . The Applicant contends he should have received a medical discharge. 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 , such as medical . 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 Board for Correction of Naval Records can grant this type of narrative reason change. There is no indication in the records that his command administratively discharged him for Misconduct to get rid of him because of his medical issues. Relief denied.

6 : (Decisional) ( ) . The Applicant contends his medical condition, including a TBI, mitigates his misconduct. The record shows the Applicant’s record was screened to determine if PTSD/TBI were contributing factors , and there is no indication that TBI was a contributing factor in his misconduct. T he Applicant , however, submitted a statement to the Separati on Authority stating th at his moderate head injury and post - concussive symptoms led to his misconduct. Based on the Applicant’s record and his statement to the Separati on Authority, the NDRB presume s that proper consideration was given to the Applicant’s medical condition s prior to his administrative separation for Misconduct . The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. After an exhaustive review, the NDRB determined TBI and other medical conditions did not mitigate his misconduct, and his 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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