ex-AMHAR, USN
ND06-01183

Current Discharge and Applicant’s Request

Application Received:  20060918 	Characterization Received:  other than honorable 
Narrative Reason:  PATTERN OF MISCONDUCT Authority:  MILPERSMAN 3630600

Applicant’s Request:	Characterization change to:    
			Narrative Reason change to: 
Applicant’s Issues:	1.  Veterans Affairs benefits.
2.  Misconduct caused by psychological depression and PTSD after sexual assault.
			3.  Post service.

NDRB Documentary Review Conducted:		20051206	     
NDRB Documentary Review Docket Number:	ND05-01136	     
NDRB Documentary Review Findings:		DISCHARGE PROPER AND EQUITABLE      
Applicant Testified:  YES
Applicant Available for Questions:  YES
Witnesses:        
Observers:        

Decision

By a vote of  the Characterization shall  	
By a vote of  the Narrative Reason shall  PATTERN OF MISCONDUCT.

Date:  20071114              PERSONAL HEARING         Location:  Washington D.C	         Representation:  

Discussion

Issue 1:   either  which the Board cannot form the basis of relief for the Applicant, or  the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding .  

Issue 2 (Equity) The Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service.  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.  The NDRB reviewed all of the available records, supporting documents, facts, elements of discharge, evidence submitted by the Applicant, and circumstances unique to this case.  A particular circumstance which the board weighed was the assault suffered by the Applicant.  Although not an excuse for misconduct, the NDRB noted it as a mitigating factor and as a result determined that an inequity in the characterization did occur.  

Issue 3 (Equity).   The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, to the extent that 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.  The Board determined that the documentation provided by the Applicant was not a mitigating factor that should effect change of the discharge

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, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that 

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19910531 - 19910904  	
Period of Service Under Review:
Date of Enlistment: 19910905	Years Contracted:  ; Extension:    	Date of Discharge:  19930929
Length of Service:  02  Yrs  00  Mths  25  Dys	Lost Time:  Days UA:    Days Confined:  
Education Level:  	Age at Enlistment:  	AFQT:  96         Highest Rank/Rate:  AMHAN
Evaluation marks (# of occasions):	Performance:  2.8(2)	Behavior:  2.5(2)	 OTA:  3.20 
Awards and Decorations (per DD 214):  NATIONAL DEFENSE SERVICE MEDAL

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

19920810:	CO's NJP -- Viol UCMJ Art. 86 (5 specs) - (1) Failed to go to duty section muster, (2) Failed to muster for duty, (3) Failed to muster for duty, (4) Not at recall while in a duty status, (5) Failed to go at the time prescribed to appointed place of duty.  Awarded – Oral reprimand; FOP ($100.00) for (1 month); RIR (E-2) (suspended for 6 months).

19920902:	Vacate suspended RIR awarded at CO’s NJP dated 19920810 for violation of UCMJ Article 91, Insubordinate conduct towards an NCO.  

19920902:	CO's NJP -- Viol UCMJ Art. 91 (3 specs) - Insubordinate conduct towards a noncommissioned officer, Art. 90 - Willful disobedience of a superior commissioned officer, Art. 86 (6 specs) - Failure to go at the time prescribed to appointed place of duty.  Awarded - RIR (E-1); Restr for (30 days); Extra duties (30 days).

19920902:	Retention Warning for CO’s NJP dated 19920902 - Art. 90 - willful disobedience, Art. 91 x 3 - insubordinate conduct, Art. 86 x 6 - UA.

19930323:	Naval Hospital Portsmouth, VA, Psychiatry Clinic:  Command directed due to flaunting 22 caliber pistol and  large knife at base gym.   Base security confiscated weapons in barracks.  States she imagines killing people but denies homicidal/suicidal ideations.  
	Diagnosis:  Borderline personality disorder.
	Recommendation:  Fit for duty psychiatrically.  Recommend routine administrative separation.

19930525:	CO's NJP -- Viol UCMJ Art. 92 (2 specs) - (1) Violate a lawful general regulation by having a 22 caliber Smith and Wesson semi-automatic pistol, 220 rounds of 22 caliber ammunition, and a 11 inch US Navy dive knife, (2) Violate a lawful written order, driving in excess of the ramp speed limit.  
Awarded - FOP ($407.40) for (2 months); Restr for (45 days).

19930729:	Defense Counsel letter of deficiency for Administrative Board.  Applicant claims that she was the victim of four attempted rapes; two before service and two while in service.  Applicant claims she occasionally carries the knife with her for protection.  

19930722:	Medical Record:  Flight surgeon has reviewed psychiatry evaluation from 19930323 and concurs with fit for full duty with a routine administrative separation as borderline personality disorder is not compatible with military service.

Discharge Process

Date Notified:					19930615
Reason for Discharge:	 - 
	 - PATTERN OF MISCONDUCT
Least Favorable Characterization:	

Date Applicant Responded to Notification:		19930621
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			 (NOT FOUND IN RECORD)
	Administrative Board			

Administrative Board Date:	19930723
              Findings, by preponderance of the evidence:	BY   -  .
	BY   - 
PATTERN OF MISCONDUCT .
	BY  SEPARATION  WARRANTED.
              Recommendation on Separation: 	BY  
              Recommendation on Characterization:	BY  

Commanding Officer Recommendation (date):	 (19930825)
Separation Authority (date):	BUPERS (19930916)
              Reason for discharge directed:	 - PATTERN OF MISCONDUCT
              Characterization directed:	
Date Applicant Discharged:	19930929

NDRB Document Review:	DISCHARGE PROPER AND EQUITABLE (20051206)

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:	Service and/or Medical Record:  		Other Records:  

Related to Post-Service Period:  	
	Employment:  			Finances:  			Education: 		
	Health/Medical Records:  		Substance Abuse:			Criminal Records:  	
	Family/Personal Status: 		Community Service:  		References:  		
	
Additional Statements From Applicant:  	From Representative:    
Other Documentation (Describe)  Letter from Member of Congress

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C, Change 5, effective 05 Mar 93 until 21 Jul 94), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - A PATTERN OF MISCONDUCT. 

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 violations of the UCMJ, Articles 91 and 92.

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 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:  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