Upgrade.Vet

NAVY | DRB | 2014_Navy | ND1401060

Original file (ND1401060.rtf) Auto-classification: Denied

ex-SR, USN

Current Discharge and Applicant’s Request

Application Received: 20140508

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:                           Active:

Period of Service Under Review:
Date of Current Enlistment: 20000426     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20010104      Highest Rank/Rate: SR
Length of Service: Y ear( s ) M onth( s ) 10 D a y ( s )
Education Level:        AFQT: 37
Evaluation M arks:         NFIR

Awards and Decorations ( per DD 214):      NONE

Periods of UA /C ONF :

NJP :

- 20001220 :      Article (Absence without leave) 2 specifications
         Specification 1: From on or about 21 July 2000 until on or about 21 July 2000
         Specification 2: From on or about 21 July 2000 until on or about 2 December 2000
         Article (Failure to obey order or regulation)
         Article (General article, adultery)
         Awarded: Suspended:

S CM :

SPCM:

C C :

Retention Warning Counseling :

Administrative Corrections to the Applicant’s DD 214

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

         “ ”

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. Naval Military Personnel Manual, (NAVPERS 15560C), Change 30, effective 30 August 2000 until
24 January 2001, 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 86, 92 , 134 .

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

Applicant’s Issues

1.        The Applicant seeks an upgrade in order to receive service benefits .
2.       The Applicant contends her post-traumatic stress disorder (PTSD) and bipolar disorder were mitigating factors in her misconduct .
3.       The Applicant contends that youth and immaturity were contributing factors in her misconduct .
4.       The Applicant contends the characterization of her discharge should be upgraded because she suffered a lot of setbacks due to her deprived background and the physical, mental, and verbal abuse of her husband .
5.       The Applicant contends her discharge should be upgraded because she was pending a medical discharge for her bone issues .
6.       The Applicant contends that her post service situation warrants consideration for an upgrade .

Decision

Date : 20 1 4 1001             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall .

Discussion

The Naval Discharge Review Board reviewed the Applicant's record to see if s he deployed in support of a contingency operation and was, as a consequence of that deployment, diagnosed with PTSD. A review of h er record revealed that s he did not deploy in support of a contingency operation, and so h er case did not warrant an expedited review in accordance with U.S. Code, Title X, Section 1553(d)(1). Although not required the Board membership included a medical officer based on applicants PTSD claim.

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 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 o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave , two specific ation s), Article 92 ( Failure to obey order or regulation , one specific ation ), and Article 134 ( General article, adultery; one specific ation ). 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 waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board .

: (Nondecisional) The Applicant seeks an upgrade in order to receive 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.

: (Decisional) ( ) . The Applicant contends her post-traumatic stress disorder (PTSD) and bipolar disorder were mitigating factors in her misconduct . In determining discharge characterization of service, the Applicant’s conduct forms the primary basis for consideration. The Applicant’s in-service conduct included one nonjudicial punishment for serious offenses representing a willful failure to meet the requirements of h er contract honorably to include two specifications of absence without leave that were terminated by her apprehension . However, the Applicant contends h er PTSD was a mitigating factor in h er misconduct. Neither t he Applicant’s official military service record nor her enlistment documentation contain s a ny mention of a diagnosis of PTSD , mental health counseling, or mental health diagnoses ; however , the Applicant provided significant pre- and post -service documentation to support her contention that PTSD was a mitigating factor associated with the in-service misconduct.

Although the Applicant presented diagnoses of PTSD as early as age 11, Bipolar type I Disorder with Psychotic Features, Major Depressive Disorder, Dependent Personality Disorder, Borderline Personality Disorder, pseudo seizures, depression, and Obsessive Compulsive Disorder to this board , s he also failed to truthfully and fully disclose h er pre-service mental health history during the application process. According to regulations, an enlistment, induction, or period of service is fraudulent when there has been deliberate material misrepresentation, including the omission or concealment of facts that, if known at the time, would have reasonably been expected to preclude, postpone, or otherwise affect the service member’s eligibility for enlistment or induction. Federal law requires all persons applying for enlistment in the military to disclose all sealed, expunged, or juvenile records. Therefore, the Applicant had an obligation to truthfully and fully answer all questions regarding her mental health history. Further more , the Applicant states that her brief time in service aggravated her pre-existing and undisclosed conditions—claims which the NDRB determined by to be without merit. Statements alone, without sufficient documentary evidence, are not enough for the NDRB to form a basis of relief.

In accordance with the MILPERSMAN, 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 pro ceedings or civilian conviction; however, the offense must be substantiated by a preponderance of evidence. The statements and documents provided by the Applicant do not refute the presumption of regularity in this case. The Applicant was provided the opportunity to present h er case before an administrative board, but waived that right, thus accepting the discharge recommended in the letter of notification. Relief denied.

: (Decisional) ( ) . The Applicant contends that youth and immaturity were contributing factors in her misconduct . While the Applicant may feel h er youth and immaturity were the underlying causes of h er misconduct, the record clearly reflects his willful misconduct and demonstrated s he was unfit for further service. The evidence of record does not demonstrate the Applicant was not responsible for h er conduct or that s he should not be held accountable for h er actions. While some members may be less mature than others, the NDRB does not view a member’s claim of immaturity to be a mitigating factor or a sufficient reason for misconduct. Relief denied.

4 : (Decisional) ( ) . The Applicant contends the characterization of her discharge should be upgraded because she suffered a lot of setbacks due to her deprived background and the physical, mental, and verbal abuse of her husband . The NDRB recognizes that serving in the military is challenging. Most servicemembers, however, serve honorably and therefore earn their Honorable discharges. In fairness to those servicemembers, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. There is no evidence in the record, nor did the Applicant provide any documentation, to indicate s he attempted to use the numerous services available for servicemembers who undergo personal problems during their enlistment, such as the Navy Chaplain, Medical or Mental Health professionals, or Family Advocacy Programs. The NDRB determined the Applicant’s personal problems were not mitigating factors in h er misconduct. Relief denied.

5 : (Decisional) ( ) . The Applicant contends her discharge should be upgraded because she was pending a medical discharge for her bone issues . There is no indication in the evidence of record or in the documentation submitted by the Applicant that the Applicant was recommended for or processed for a medical separation by proper authority. Further, the evidence of record does not indicate that proper authority erred by not initiating a medical separation for the Applicant. Therefore, the NDRB found the Applicant’s issue to be without merit. Relief denied.

6 : (Decisional) ( ) . The Applicant contends that her post service situation warrants consideration for an upgrade . The NDRB considers 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. The Applicant provided a personal statement, evidence of severe mental health issues resulting in civil disability status and payments , her current marriage certificate, proof of volunteering to support victim impact programs for sexual assault and rape offenders, and several character references. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum , however, completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration. To warrant an upgrade, the Applicant’s post-service efforts need to be more encompassing. The Board determined that the documentation submitted by the Applicant does not demonstrate if in-service misconduct was an aberration. The characterization of service received was appropriate considering the length of service and UCMJ violations. 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 | ND1401060

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