ex-CSSA, USN

Current Discharge and Applicant’s Request


Applicant’s Request:     Characterization change to:     
         Narrative Reason change to:     
         Reentry Code change to:

Summary of Service

Prior Service:
Inactive:        USNR (DEP)       20110325 - 20111211     Active: 

Period of Service Under Review:

Date of Current Enlistment: 20111212    Age at Enlistment:
Period of Enlistment: Years Extension
Date of Discharge: 20140731     Highest Rank/Rate: CS3
Length of Service: Year(s) Month(s) 20 Day(s)
Education Level:        AFQT: 40
Evaluation Marks:        Performance: 2.40 (5)    Behavior: 1.80 (5)      OTA: 2.49

Awards and Decorations (per DD 214):    

Periods of UA/CONF:

NJP:

- 20140429:      Article (Absence without leave) 2 specifications
         Article (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer) 2 specifications
         Awarded: Suspended: (Vacated 20140601)

- 20140612:      Article (False official statements)
         Awarded: Suspended:

SCM:     SPCM:    CC:      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 IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications.

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 91, 107.

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

Applicant’s Issues

1.       The Applicant contends her RE-Code is improper and inequitable.
2.       The Applicant seeks an upgrade in order to qualify for G. I. Bill benefits.
3.       The Applicant contends her discharge is improper because it was not based off of a pattern of misconduct or serious offense. The Applicant also contends her characterization is, therefore, inequitable.

Decision

Date: 20150225            Location: Washington D.C.        Representation:

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

Discussion

As a result of the Applicant’s implied claim that a mental health diagnosis impacted her 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 Applicant’s service record fails to document the Applicant any diagnosis of a mental health disorder while serving in the armed forces and the Applicant failed to provide any documentation either in or post-service mental health treatment.

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 discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included for of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, two specifications), Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer; two specifications), and Article 107 (False official statements, one specification). 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 right to consult with a qualified counsel and exercised her rights to submit a written statement and request a General Court-Martial Convening Authority review.

: (Nondecisional) The Applicant contends her RE-Code is improper and inequitable. Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code only if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code. 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.

: (Nondecisional) The Applicant seeks an upgrade in order to qualify for G. I. Bill benefits. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge. 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 discharge is improper because it was not based off of a pattern of misconduct or serious offense. The Applicant also contends her characterization is, therefore, inequitable. The NDRB noted that the attached statement to her application was directed towards the Board for Correction of Naval Records; however, the NDRB reviewed the issues and claims presented in the statement as a continuation of this issue. As such, the NDRB considered the Applicant’s allegations of being discharged for reasons of command reprisal and discrimination instead of the narrative reason presented on her DD Form 214. With respect to the specificity of this claim, statements alone, without sufficient documentary evidence, are not enough for the NDRB to form a basis of relief.

The NDRB also considered the Applicant’s claim to the Board of Correction of Naval Records that mental health and medical issues were the proper underlying cause of her separation. The NDRB did not find any reference of a mental health diagnosis in the Applicant’s service record to support her claim, and the Applicant did not provide any documentary evidence of a mental health diagnosis by competent medical authorities to support her claim. The Applicant did provide, and the record also contained, a letter from a medical provider stating that she had chronic mechanical back pain. Per regulations, the initiation and submission of medical boards are at the discretion of the individual physician. 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 board by proper authority. Further, the evidence of record does not indicate that proper authority erred by not initiating a medical board for the Applicant.

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. However, the NDRB does not consider the circumstances surrounding the Applicant’s chronic mechanical back pain to be of sufficient nature to excuse the Applicant’s misconduct. Though the Applicant may feel that a mental health or medical diagnosis was the underlying cause of her misconduct, the record reflects willful misconduct that demonstrated she was unfit for further service. The evidence of record did not show that a mental health or medical diagnosis was a sufficient mitigating factor to excuse the Applicant’s conduct or accountability concerning her actions. After an exhaustive review, the NDRB determined that a mental health or medical diagnosis did not mitigate the Applicant’s misconduct.

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 issues. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention the command treated her unfairly. The Applicant’s service included two nonjudicial punishments for violations of UCMJ Articles 86, 91, and 107. Violations of UCMJ Article 91 and 107 are considered serious offenses for which a punitive discharge is authorized. The record of evidence clearly shows the Applicant waived her rights to trial by court-martial and an administrative separation board. If the Applicant felt she was mistakenly charged with a crime, it was her obligation to contest those charges at the time they were made. During a trial she would have had the opportunity to mount a defense against the charges. The Applicant submitted no evidence to support her contention. Additionally, the Applicant’s letter to her separation authority was found in the record expressly stating her desire to be discharged from active duty.

Finally, the Manual for Courts-Martial United States, Part V, indicates the rules of evidence, other than with respect to privileges, do not apply at NJP proceedings. Therefore, hearsay evidence is permissible and the Applicant’s contention the NJP was based on hearsay and presumable evidence has no merit. The Applicant has not presented any documentation to prove the commanding officer disregarded relevant information or failed to comply with applicable regulations during the NJP proceedings. The NDRB determined the Applicant’s conduct, which forms the primary basis for determining the character of her service, reflected a significant departure from the conduct expected of a servicemember and that an upgrade was not warranted. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall remain and the narrative reason for separation shall remain MISCONDUCT (SERIOUS OFFENSE).

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 : Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code. 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 re enlistment 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