ex-LS2, USNR

Current Discharge and Applicant’s Request


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

Summary of Service

Non Prior Service: USNR-R 20000622 – 20010927 COG
Prior Service:
Inactive:        USNR (DEP)       20010928 - 20020122      Active:  20020123 - 20060122
                           Active:  20060123 - 20090114

Period of Service Under Review:

Date of Current Enlistment: 20090115     Age at Enlistment:
Period of Enlistment: Years Extension
Date of Discharge: 20110107      Highest Rank/Rate: LS1
Length of Service: Year(s) Month(s) 24 Day(s)
Education Level:         AFQT: 71
Evaluation Marks:        Performance: 3.60 (5)    Behavior: 2.60 (5)       OTA: 3.49

Awards and Decorations (per DD 214):     Rifle Pistol MSM (4) (2) ACM AAM LoC LoA (2)

Periods of UA/CONF:

NJP:

- 20091214:      Article
         Awarded: Suspended:


SCM:

SPCM:

CC:

- 20091214:      Offense: Drunken operation of a vehicle, second offense, BAC: .30%
         Sentence: restricted driver’s license for 1 year with fine of $500.00 required Breathalyzer in her vehicle, required enrollment in the Alcohol Safety Action Program.

Retention Warning Counseling:






Administrative Corrections to the Applicant’s DD 214

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

         “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 020123UNTIL 090114”

The NDRB will recommend to the Commander, Navy Personnel Command, 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:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

Types of Witnesses Who Testified

         Expert:           Character:      

Pertinent Regulation/Law

A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 29, effective 10 November 2009 until Present, Article 1910-144, Separation by Reason of Misconduct - Civilian Conviction.

B. 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 111, drunken or reckless operation of a vehicle, aircraft, or vessel.

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

Applicant’s Issues

1. The Applicants contends her discharge was inequitable because it was based on one incident in 9 years of service.
2. The Applicant contends her administrative separation board voted to retain her but the CO took matters in to his own hands and proceeded with her discharge.
3. The Applicant contends that her separation was improper because it was due to a PFA failure which was in no way related to her incident.
4. The Applicant contends that her evaluation documenting the NJP of 14 December 2009 failed to allow for the conclusion of her NJP and her time to conduct an appeal.
5. The Applicant contends her rights were denied and her discharge should be upgraded to honorable.
6. The Applicant contends she was diagnosed with PTSD but not given the option of a medical discharge board.
7. The Applicant contends her service was honorable and merits an upgrade to Honorable.

Decision

Date: 20150507            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 claim of PTSD or TBI, in accordance with U.S. Code, Title X, Section 1553 (d)(1), the Naval Discharge Review Board included a member who is a physician, clinical psychologist, or psychiatrist. In accordance with section 1553 (d)(2), the service secretary expedited a final decision and accorded the case sufficient priority to achieve an expedited resolution.

The Applicant stated that she was diagnosed with PTSD related to her combat service in Afghanistan. The Applicant’s service record documents completion of a deployment in support of Operation ENDURING FREEDOM.

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 Applicant’s record of service included for of the Uniform Code of Military Justice (UCMJ): Article 111 (Drunken or reckless operation of a vehicle) and one Civil Conviction: For drunken operation of a vehicle, second offense, BAC: .30%. Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant elected rights to consult with a qualified counsel, submit a written statement, and request an administrative board. The Administrative Board considered three reasons for administrative separation and found by a vote of 3-0 that the preponderance of the evidence supported misconduct for 2 of the 3 reasons; the Administrative Board recommended, by a vote of 3-0 to suspend separation for 12 months for 2 of the 3 reasons. The third reason, the Administrative Board voted 3-0 that the preponderance of the evidence does not support the offense and voted 3-0 to recommend retention for reason 3. The Separating Authority(SA) did not accept the Administrative Board’s recommendation to suspend separation or retain the Applicant. The SA directed the Applicant be separated with a General(Under Honorable Conditions) discharge.

Issue 1-2: (Decisional) () . The Applicants contends her discharge was inequitable because it was based on one incident in 9 years of service. The Applicant also contends her administrative separation board voted to retain her but the CO took matters in to his own hands and proceeded with her discharge. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy. The Applicant’s Commanding Officer commented in the 6 August 2010 Administrative Separation letter, “I disagree with the administrative board’s recommendation of suspension of the separation. I recommend that she be separated with a General discharge. Though the Applicant’s work ethic has been clearly exemplary, Navy Core Values demand a higher standard and the multiple alcohol incidents that are documented in her record cannot be ignored. This is particularly true in today’s manpower climate, where many fine Sailors without these kinds of issues are not able to obtain PTS qoutas to Stay Navy. Additionally, though her Post-Traumatic Stress Disorder (PTSD) may not have been diagnosed at the time of her DUI arrest and NJP, I believe it does not relieve her of accountability for the underlying misconduct, which included Drunken Operation of a Vehicle during normal duty hours at a significantly impaired level (.30 Blood Alcohol Content).” The NDRB, reviewing the Commanding Officer’s comments, and review of the Applicant’ military record, found that a preponderance of the evidence supports the conclusion that the Applicant committed the offenses alleged, that separation from the Navy was appropriate, and that a General (Under Honorable Conditions) discharge was warranted. Relief denied.

Issues 3-5: (Decisional) () . The Applicant contends that her separation was
improper because it was due to a PFA failure which was in no way related to her incident. The Applicant also contends that her
evaluation documenting the NJP of 14 December 2009 failed to allow for the conclusion of her NJP and her time to conduct an
appeal. Additionally, the Applicant contends her rights were denied and her discharge should be upgraded to honorable.
The NDRB presumed regularity in governmental affairs in that the Separation Authority and Staff Judge Advocate review of
the discharge package ensured that the Applicant was afforded all of her administrative rights pursuant to the separation
process. The Applicant did not submit any documentation to rebut any presumption of regularity in governmental affairs by the
NDRB. The Applicant's statements alone do not overcome the government's presumption of regularity in this case. The record
clearly depicts that the Applicant was notified for the following three reasons for administrative separation: First reason,
“MISCONDUCT-COMMISION OF A SERIOUS OFFENSE”…Second reason, “MISCONDUCT-CIVILIAN
CONVICTION”…Third reason, “ALCOHOL REHABILITATION FAILURE”. The NDRB found that the record does not support the Applicant’s contention her separation was improper because it was due to a PFA failure. Additionally, the separation code on the Applicant’s DD Form 214 indicates that a discharge hearing board was conducted. Relief denied.

6: (Decisional) () . The Applicant contends she was diagnosed with PTSD but not given the option of a medical discharge board. The evidence of record does not indicate that proper authority erred by not initiating a medical board for the Applicant. The NDRB cannot grant a change based solely on this issue; however, the Applicant should be aware that the VA has announced special VA enrollment access for PTSD and mental health treatment to combat veterans discharged under other than dishonorable conditions. Effective Jan. 28, 2008, combat veterans discharged from active duty on or after Jan. 28, 2003 are eligible for combat veteran enhanced eligibility and enrollment placement into Priority Group 6 (unless eligible for higher enrollment Priority Group placement) for 5 years post discharge. Additionally, the VA determines the eligibility for enrollment in its programs - independent of the Applicant’s characterization of service as determined by the Marine Corps. The Applicant, as a combat veteran, is encouraged to contact her local VA affairs representative for more information and may request a review of service and determination of benefits from the VA. Alternately, she may call 1-877-222-8387 or visit the following website for more information: http://www4.va.gov/healtheligibility/Library/pubs/CombatVet/CombatVet.pdf . Relief denied.

7: (Decisional) () . The Applicant contends her service was honorable and merits an upgrade to Honorable. 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 Marines and Sailors who served honorably, Commanders and Separation Authorities are tasked to ensure that undeserving servicemembers receive no higher characterization than is due. The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances. The record contained no evidence of any wrongdoing by the Applicant’s commanding officer 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 discerned no impropriety or inequity and determined the Applicant’s discharge was proper and equitable. 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 Marines and Sailors who served honorably, Commanders and Separation Authorities are tasked to ensure that undeserving servicemembers receive no higher characterization than is due. The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances. 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 UNDER HONORABLE CONDITIONS (GENERAL) and the narrative reason for separation shall remain MISCONDUCT (CIVIL CONVICTION). 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 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