ex-SR, USN

Current Discharge and Applicant’s Request


Applicant’s Request: Characterization change to: GENERAL (UNDER HONORABLE CONDITIONS)
                  Narrative Reason change to: NONE REQUESTED

Summary of Service

Prior Service:
Inactive:        USNR (DEP)       20000919 - 20000926 COG         Active:  NONE

Pre-Service Drug Waiver: NO

Period of Service Under Review:
Date of Current Enlistment: 20000927    Age at Enlistment: 23
Period of Enlistment: 4 Years NO Extension
Date of Discharge: 20030804     Highest Rank/Rate: E-3/SN
Length of Service: 02 Year(s) 10 Month(s) 09 Day(s)
Education Level: 12     AFQT: 39
Evaluation Marks:        Performance: 3 (1)       Behavior: 3 (1)         OTA: 3.0

Awards and Decorations (per DD 214):     NDSM SSDR

Period of UA: 20010310-20010318 (9)
Time Lost from DD 214: 20030725-20030803 (9)

NJP: 1

- 20010908:      Article 86 (Absence without leave; 20010630-20010709, 9 days)
         Awarded: FOP RESTR EPD Suspended: FOP RESTR EPD

SCM: 1

- 20030429:      Article 86 (Absence without leave; 20020701-20030324, 263 days)
         Article 112a (Wrongful use, possession, etc., of controlled substances; O/A 20030323 SNM did wrongfully use methamphetamine and marijuana per urinalysis results dated 20030404 reporting 657ng/ml and 81ng/ml respectively.)
         Sentence: RIR E-1 CONF 28 days
         [CA approved sentence to be executed on 20030430]

SPCM: NONE

CC: NONE

Retention Warning Counseling: 1

- 20010912:      For deficiencies related to NJP held on 20010908 for violation of Art 86 (Absence without leave; 20010630-20010709, 9 days)

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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. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 33, effective 22 August 2002 until
28 April 2005, 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 provided paperwork from VA counseling for an off-duty incident involving sexual assault that occurred in San Diego, CA while serving onboard the USS JOHN C. STENNIS (CVN74) as mitigation for an upgrade.

Decision

Date: 20150212   DOCUMENTARY REVIEW      Location: Washington D.C.        Representation: NONE

By a vote of 5-0 the Characterization shall remain UNDER OTHER THAN HONORABLE CONDITIONS .
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT .

Discussion

As a result of the Applicant’s claim that a MENTAL HEALTH DIAGNOSIS impacted their discharge, and in accordance with U.S. Code, Title X, Section 1553 (e)(2), the Naval Discharge Review Board included a member who is a physician, clinical psychologist, or psychiatrist.

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 governmental 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 the discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included one NAVPERS 1070/613 (Page 13) warnings, one nonjudicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave); and one summary court-martial (SCM) for violations of the UCMJ: Article 86 (Absence without leave) and Article 112a (Wrongful use, possession, etc., of controlled substances). Based on the Article 112a violation, processing for administrative separation is mandatory. When notified of administrative separation processing using the administrative board procedure, the Applicant waived his rights to consult with a qualified counsel, submit a written statement, and request an administrative board.

Issue 1: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant provided paperwork from VA counseling dated/drafted from September to October 2014 for an off-duty incident involving sexual assault that occurred in San Diego, CA while serving onboard the USS JOHN C. STENNIS (CVN74) as mitigation for an upgrade. Eight reference letters were also submitted which attested to the good character of the Applicant. The NDRB requested all records of medical treatment, both active duty and post-service, from the VA. The medical records did not document any request for evaluation or counseling for mental health concerns while on active duty. The Applicant states that the sexual trauma occurred after the STENNIS returned from deployment which would have been in May of 2002. The Applicant’s record documents two periods of substandard performance before the alleged sexual trauma would have occurred. The first was an Unauthorized Absence in March of 2001 for nine days, and the second was another Unauthorized Absence in June 2001 for nine days which resulted in NJP. After a thorough review, the NDRB determined that the alleged sexual trauma would not mitigate the Applicant's history of misconduct that culminated in his April 2003Summary Court Marshal for wrongful use of methamphetamine and marijuana in conjunction with a 263 day Unauthorized Absence resulting in his subsequent discharge. The Violation of Article 112a requires mandatory processing for administrative separation regardless of grade 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. The command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. Although the Applicant may feel that the sexual trauma was the underlying cause of his 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. When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline. In this case, the NDRB does not consider the circumstances surrounding the Applicant’s stated condition or diagnosis to be of sufficient nature to excuse the Applicant’s misconduct. Relief denied.



Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries and discharge process, the Board found the discharge was proper and equitable. Therefore, the awarded characterization of service shall remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain MISCONDUCT. The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his 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