ex-BMSA, USN
ND06-01088

Current Discharge and Applicant’s Request:

Application Received:  				20060816
Narrative Reason for Separation:			MISCONDUCT DUE TO 
Character of Service:				
Discharge Authority:				MILPERSMAN 1910-142
Last Duty Assignment/Command at Discharge:	USS NIMITZ CVN 68

Applicant’s Request:
	Narrative Reason change to:		N/A
	Characterization change to:		
	Review Requested:			
Representation:  					
Applicant’s Issues as Summarized by the Board	1.  Equity – In-service performance/awards
						2.  Equity – Reinlistment
						3.  Equity – Employment

Decision:

By a vote of  the Characterization shall  .	
By a vote of  the Reason for Discharge shall   - .

Date of Decision:					20070802
Location of Board:				Washington D.C.
Complete Service Record:				
Complete Medical Record:			
Complete Discharge Package:			

Regarding propriety, the Board found the discharge:	
Regarding equity, the Board found the discharge:	

Discussion

Issue 1 (Equity).  The Applicant requests upgrade of his discharge based in part on his in service performance and awards.  When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  An under other than honorable conditions discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.  The Applicant’s service was marred by one retention warnings, four nonjudicial punishment proceedings for violations of UCMJ Articles 91 (disrespect in language and deportment towards a Chief Petty Officer), 111(drunken or reckless operation of a motor vehicle), 134 (disorderly conduct aboard ship), 128 (two assaults on crewmembers while aboard ship), and 134 (missing duty due to drunkenness).  Violations of UCMJ Articles 91, 111, 128, and 134 are considered serious offenses for which a punitive discharge is authorized at courts martial.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  

Regarding the Applicant’s Issues 2 and 3  which can form the basis of relief for the Applicant.  The Applicant is directed to the Addendum regarding these Issue(s).

There is a presumption of regularity in the conduct of Government affairs.  This presumption will be applied in any review 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.

.

Summary of Service:

Prior Service:
Inactive: USNR (DEP)				19920522 - 19930404 
Active:   USN		               		19930405 - 19970624 
	USN					19970625 - 20010606 HON
Period of Service Under Review:
Date of Enlistment:  				20010607
Years Contracted:  				;        
Date of Discharge:				20040103
Length of Service:				02  Yrs  06  Mos  28  Days
Time Lost During This Period:			1
Days Unauthorized Absence:			1
Days Confinement:				None

Education Level:  				
Age at this Enlistment:  				
AFQT:  						61
Highest Rate/Rank:				BM2

Performance Evaluation Averages (number of marks):
Performance:					4.0 (4)
Behavior:					4.0 (4)
OTA:						3.89
Extracted from:  
Applicant’s Supporting Documents    Other:       

Awards and Decorations (as listed on the DD Form 214):
NAVY AND MARINE CORPS ACHIEVMENT MEDAL(2), MERITORIOUS UNIT COMMENDATION, BATTLE "E" RIBBON, GOOD CONDUCT MEDAL (2), NATIONAL DEFENSE SERVICE MEDAL(2), ARMED FORCES EXPEDITIONARY MEDAL , GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL, GLOBAL WAR ON TERRORISM SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON(3)

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

20030421:	NJP for violation(s) of UCMJ:
	Article 91 (2 specifications):
	Specification 1:  On or about 20030113, was disrespectful in language toward a BMC by saying to him, “No, that’s b_,” and “you don’t know how to run an UNREP station, you are going to kill someone,” or words to that effect.
	Specification 2: .On or about 20030113, was disrespectful in deportment toward a BMC by pointing his finger at the said BMC’s face.
	Article 134:  On or about 20030113, disorderly.
	Award:  Extra duty for 10 days, reduction to E-4.  Reduction suspended for 6 months.
	No indication of appeal in the record.

20030421:	Retention Warning:  Advised of deficiency (Nonjudicial punishment awarded for violation of the UCMJ, Article 91, disrespect toward a chief petty officer and Article 134, disorderly conduct.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

20030602:	Vacate reduction to E-4 due to continued misconduct.

20030602:	NJP for violation(s) of UCMJ:
	Article 128: On or about 20030516, unlawfully assault SN by pushing him and grabbing his neck.
	Award:  Forfeiture of $600.00 for 2 months, restriction and extra duty for 45 days, reduction to E-3.  Reduction suspended for 6 months.
	No indication of appeal in the record.

20031018:	NJP for violation(s) of UCMJ:
	Article 128: On or about 20031005, unlawfully assault, SN, by grabbing him by the throat, choking and pushing his head against the bulkhead with his hands.
	Award:  Forfeiture of $814.00 for 2 months, restriction and extra duty for 45 days, reduction to E-3.
	No indication of appeal in the record.

20031210:	NJP for violation(s) of UCMJ:
	Article 111:  On or about 20031203 physically control a vehicle, while the alcohol concentration in his breath was 0.08 grams of alcohol per 210 liters of breath or greater as shown by chemical analysis.
	Article 134:  On or about 20031203, as a result of wrongful previous overindulgence in intoxicating liquor or drugs incapacitated for the proper performance of his duties.
	Award:  Forfeiture of $814.00 for 2 months, restriction for 60 days, reduction to E-2..
	No indication of appeal in the record.

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

20020304:	Chronological Record of Medical Care, Mental Health/CAAC Division, USS Nimitz.  Service member is 27 year old divorced male with 9 years CAD.  Patient complains of depression and anxiety, states, “I don’t want to be out here with my daughter and girlfriend on the east coast.”  BM2 L_ states being depressed and worried since his daughter and girlfriend went home to South Carolina a few days ago.  He reports currently going through divorce and just recently meeting his 7 y/o daughter in October 2001.  Patient reports symptoms of decreased concentration and energy level, increase in sleep, irritability and anhedonia. Patient states, “I am on the phone whenever I can, I feel guilty any time I go out, because I know she is probably home taking care of my daughter.”  Patient denies Suicidal/Homicidal Ideation, no plan or intent.  He does however report thoughts of causing harm to himself with the intent of being removed from the ship.  He denies a specific plan or intent to follow through with these thoughts.   Assessment BM2 L_ appears to be having a maladaptive reaction to interpersonal stressors.  His symptoms do not appear to be related to a chronic disorder, but to difficulty adjusting to change.
	AXIS I:  Adjustment disorder with depressed mood
	AXIS II:  No diagnosis on Axis II
	Axis III:  Medical Condiitons:  No serious medical conditions are noted at this time.
	Axis IV:  Psychosocial:  Separation from primary support.
	Axis V:  Global Assessment of functioning: 74
	
20020313:	Chronological Record of Medical Care, Psychology , USS Nimitz.  Service member was on time for today’s evaluation.  The patient says he is very worried that he and his wife are in the process of divorcing and it should be finalized by June but they have been separated off and on since 1997 when he discovered that she was having an affair while he was out on West-Pac.  He says he is glad they did not have any children together and really feels love with his girlfriend.  He says they are planning to marry once the divorce is finalized, and hope to be able to be a family.  He says that he feels very anxious about all of this and it is keeping him up at night and he feels tired, lethargic and depressed about the situation, as he is unable to do much about it being on the West Coast.  Assessment:  BM2 L_ appears to be having a maladaptive reaction to interpersonal stressors.  His symptoms do not appear to be related to a chronic disorder, but to difficulty adjusting to change 
	AXIS I:  Adjustment disorder with depressed mood
	AXIS II:  No diagnosis on Axis II
	Axis III:  Medical Condiitons:  No serious medical conditions are noted at this time.
	Axis IV:  Psychosocial:  Separation from primary support.
	Axis V:  Global Assessment of functioning: 74
	P:  Member recommended begin brief counseling with HM2 C_ to provide support while adjusting to current life changes and build coping skills; a convenience file will be maintained in the psychology section.  Recommend member attend Stress Management.  The Service Member is not suicidal, homicidal, psychotic, or gravely disabled, and does not require and would not likely benefit from psychiatric hospitalization.  Date of next contact 20020325.

20030302:	Fitness for duty examination, Nimitz Medical Department.  27 year old here for fitness for duty screening.  Had watch this am.  Was caught sleeping (not while watch).  Division Officer was concerned with fitness for duty.  Had ETOH last night.  BAC .019 at 1320, although BM2 has passed all coordination tests.  No smell of ETOH.  I find him unfit for duty due to history of falling asleep, visible fatigue.  Examinee’s condition due to ETOH and not getting adequate rest.

Elements of Discharge:

Discharge Process:				
Date Notified:					20031216
Reason for Discharge				
						
Least Favorable Characterization:			
Record Supports Narrative Reason:			
Date Applicant Responded to Notification:		20031216
Rights Elected at Notification:
Consult with Counsel			
Administrative Board			
Obtain Copies	  			
Submit Statement(s) (date)			       
GCMCA Review				

Recommendation of Commanding Officer (date):	  20031222
Discharge directed by (date):			COMMANDER, CRUISER-DESTROYER GROUP FIVE 20031230
Narrative reason directed:				
Characterization directed:				
Date Applicant Discharged:			20040103

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:				12
	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:				12

       Description of Other Documentation:
       	     

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 
25 January 2004, 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 91 (disrespect), 111 (drunk or reckless operation of a vehicle), 128 (Assault), and 134 (disorderly conduct aboard ship).

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