ex-AA, USN
ND06-01067

Current Discharge and Applicant’s Request:

Application Received:  				20060725     
	Characterization of Service:		
	Reason for Discharge:			 - 
	Discharge Authority:			MILPERSMAN 3630600
	Duty Assignment/Command at Discharge:	NAVAL HOSPITAL (PATIENT) sAN dIEGO, ca

Applicant’s Request:	
	Characterization change to:		
	Narrative Reason change to: 		
	Review Requested:			
	Representation:				
	Issues (as summarized by NDRB):		1.  DISCHARGED DUE TO SEIZURE.

Decision:

Date of Decision:					20070712
The Discharge shall change :		
						MISCONDUCT - 
Regarding propriety, the Board found the discharge:	
Regarding equity, the Board found the discharge:	
Vote (characterization/reason)			/ 
Location of Board:				Washington D.C.
Complete Service Record:				
Complete Medical Record:			
Complete Discharge Package:			

Summary of Service:

Prior Service:
Inactive: USNR (DEP)				19881014-19881020 
Active:        		               		NONE
Period of Service Under Review:
Date of Enlistment:  				19881021     
Years Contracted:  				;        
Date of Discharge:				19910702
Length of Service:				02  Yrs  08  Mos  00  Days
Time Lost During This Period:			19
Days Unauthorized Absence:			19     
Days Confinement:				NONE     

Education Level:  				
Age at this Enlistment:  				
AFQT:  						33
Highest Rate/Rank:				AN

Performance Evaluation Averages (number of marks):
Performance:					2.7 (2)
Behavior:					3.1 (2)
OTA:						3.1 (2)

Awards and Decorations (as listed on the DD Form 214):
NATIONAL DEFENSE MEDAL 

Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

19890918:	Applicant to unauthorized absence at 0700 on 19890918.

19890918:	Applicant from unauthorized absence at 0730 on 19890918 (30 minutes).

19891103:	Applicant to unauthorized absence at 0700 on 19891103.

19891103:	Applicant from unauthorized absence at 0730 on 19891103 (30 minutes).

19891220:	Applicant to unauthorized absence at 0700 on 19891220.

19891221:	Applicant from unauthorized absence at 0700 on 19891221 (24 hours).

19900626:	Applicant to unauthorized absence at 0640 on 19900626.

19900626:	Applicant from unauthorized absence at 0815 on 19900626 (1 hour and 30 minutes).

19900627:	Applicant to unauthorized absence at 0640 on 19900627.

19900627:	Applicant from unauthorized absence at 0930 on 19900627 (2 hour and 50 minutes).

19910703:	Applicant to unauthorized absence at 0640 on 19900703.

19900705:	Applicant from unauthorized absence at 1200 on 19900705 (2 Days, 5 hour and 20 minutes).

19910712:	Applicant to unauthorized absence at 0700 on 19900712.

19900714:	Applicant from unauthorized absence at 1150 on 19900714 (2 Days, 4 hours and 15 minutes).

19900727:	Applicant to unauthorized absence at 0700 on 19900727.

19900727:	Applicant from unauthorized absence at 0745 on 19900727 (45 minutes).

19900825:	NJP for violations of UCMJ:
	Article 86 (2 specifications).
 	Specification 1: UA from unit from 19900703 to 19900705
 	Specification 2: UA from unit from 19900712 to 19900714.
	Article 92: Violate a lawful order by playing cards during normal working hours on 19900726.
	Award:  Forfeiture of $421 for 1 month, restriction and extra duty for 10 days, reduction to E-2 (suspended for 6 months).
	No indication of appeal in the record.

19900825:	Retention Warning:  Advised of deficiency (UA from unit from 19900703-19900705; UA from 19900712-19900714; and UA from APD on 19900726; and Article 92: Disobey a lawful order by playing cards during normal working hours on 19900726), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

19910203:	Medical Board diagnosis – Seizure Disorder

19910222:	Unauthorized absence from place of duty, Med hold desk, Naval Hospital San Diego.

19910308:	Applicant to unauthorized absence at 0730 on 19910308.

19910309:	Applicant from unauthorized absence at 0730 on 19910309 (1 day).

19910311:	Applicant to unauthorized absence at 1000 on 19910311.

19910311:	Applicant from unauthorized absence at 1530 on 19910311 (5 hours, 30 minutes).

19910403:	Applicant to unauthorized absence at 0730 on 19910403.

19910404:	Applicant from unauthorized absence at 0730 on 19910404 (1 Day).

19910409:	Results of random urinalysis indicate Applicant’s cocaine use.

19910410:	Applicant to unauthorized absence at 0730 on 19910410.

19910414:	Applicant from unauthorized absence at 1800 on 19910414 (4 Days, 12 hours, 30 minutes).

19910416:	Applicant to unauthorized absence at 0730 on 19910416.

19910424:	Applicant from unauthorized absence at 1100 on 19910424 (8 Days, 3 hours and 30 minutes).

19910502:	NJP for violations of UCMJ:
	Article 86: (6 specifications) Did on or about 19910222 absent himself without authority from NAVHOSP SDIEGO, 0730 19910308 to 0730 19910309; 1000 19910311 to 1530 19910311; 0730 19910403 to 0730 19910404; 0730 19910410 to 1800 19910414; 1530 19910415 to 1100 19910424.
	Article 92: Fail to stay awake on watch on 19910321 and 19910326.
 	Article 112a: Wrongfully use of a controlled substance (Cocaine on or about 19910409).

19910506:	DAAR: Cocaine abuse as a result of a random urinalysis, found not dependent, recommended for separation not via VA hospital.

19910528:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of Misconduct due to the Commission of a Serious Offense and Misconduct due to Drug Abuse.

19910528:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

UNDATED:	Commanding Officer, Naval Hospital, San Diego recommended to BUPERS the Applicant’s discharge under other than honorable conditions by reason of Misconduct due to the Commission of a Serious Offense and Misconduct due to Drug Abuse.

19910619:	BUPERS, directed the Applicant's discharge, Under Other Than Honorable conditions by reason of Misconduct due to the Commission of a Serious Offense.

19910702:	DD-214 issued.

19910710:	Commanding Officer, Naval Hospital, San Diego forwarded the administrative discharge package to BUPERS.

Elements of Discharge:  [INVOLUNTARY]

Discharge Process:				
Date Notified:					19910522
Reason for Discharge				

Least Favorable Characterization:			
Date Applicant Responded to Notification:		19910528
Rights Elected at Notification:
Consult with Counsel			
Administrative Board			
Obtain Copies	  			
Submit Statement(s) (date)			       
GCMCA Review				

Recommendation of Commanding Officer (date):	  UNDATED
Discharge directed by (date):			BUPERS 19910619     
Narrative reason directed:				
Characterization directed:				 
Date Applicant Discharged:			19910702

Additional Information Considered by Board

Type of documentation submitted by the Applicant and considered by the Board
       
       	Document Type					#Pages
       Related to Period of Service Under Review:
	Service/Medical Record:				1
	Other Period of Service:				0
       Related to Post-Service Period:
	Community Service:				0
	Education:					0
	Employment:					0
	Health/Medical:					0
	Character Statements:				0
	Criminal Records Checks:				0
	Additional Statements from Applicant:		0
        Other Documentation	 (Describe Below)		0

        Total Number of Pages:				1

Discussion

Decisional Issues:

Issue 1:  Thought being discharged due to seizures ().  For the Applicant’s edification, DoD disability regulations do not preclude a disciplinary separation.  SECNAVINST 1850.4 stipulates that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed for separation for a medical condition and subsequently is processed for an administrative involuntary separation for misconduct, the medical separation process is suspended.  If the action results in either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record.

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560A), Change 8, effective 
21 Aug 89 until 14 Aug 91, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe that 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.  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:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the 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.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’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 Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board 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 subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, 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 “PTSD.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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.  Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

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 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.  

Board Membership:  The names and votes of the members of the 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