ex-FR, USN
ND07-00025

Current Discharge and Applicant’s Request:

Application Received:  				20061002
	Characterization of Service:		
	Reason for Discharge:			- 

	Discharge Authority:			MILPERSMAN 1910-140
	Duty Assignment/Command at Discharge:	uss harry s truman (cvn 75)

Applicant’s Request:	
	Characterization change to:		
	Narrative Reason change to: 		
	Review Requested:			
	Representation:				
	Issues (as summarized by NDRB):		1.  Propriety/Equity – Misconduct due to medical condition
						2.  Equity – Post- service

Decision:

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

Date of Decision:					20070816
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 ().  The Applicant contends that his problems in the Navy can be attributed to his medical conditions (a deviated septum and phobia).  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 his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that his medical conditions were related to his misconduct.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  While the Applicant may feel that his medical problems were the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  

Issue 2 ().  The Applicant provided evidence of post-service conduct in support of his request for upgrade.  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 the service.  The NDRB is authorized to consider outstanding post-service factors in the re-characterization of a discharge, 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.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not sufficient to mitigate the conduct, which precipitated 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, 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)				20000926 - 20000927  
Active:   

Period of Service Under Review:
Date of Enlistment:  				20000928
Years Contracted:  				; Extension:  
Date of Discharge:				20021004
Length of Service
	Active:					02  Yrs  00  Mths  07  Dys  (does not exclude lost time)
	Inactive:					00  Yrs  00  Mths  00  Dys
	Time Lost During This Period:		 Days UA:    Days Confinement:  

Education Level:  				
Age at this Enlistment:  				
AFQT:  						50
Highest Rate/Rank:				FA

Performance Evaluation Averages (number of marks):
				Performance: N/A Behavior: N/A OTA: N/A

Awards and Decorations (as listed on the DD Form 214):  ARMED FORCES EXPEDITIONARY MEDAL, SEA SERVICE DEPLOYMENT RIBBON, NATIONAL DEFENSE SERVICE MEDAL

Service Record Entries Related to Characterization of Service or Reason for Discharge

20010324:	Retention Warning:  Advised of deficiency (Your failure to pay just debts by incurring expenses beyond your means, violation of UCMJ Article 123a, making, drawing or uttering checks without sufficient funds which occurred onboard TRUMAN (CVN 75) on or about 20010225, disrespect toward a noncommissioned officer(s), violation of UCMJ Article 91 to wit: EN3 E_, EN1 (SW) S_, and ENCM (SW/AW) S_ and failure to obey a lawful order violation of UCMJ Article 92, in that FR G_ was ordered to report to the RA division officer and failed to do so, which occurred on or about 20010312.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

20011207:	NJP for violation(s) of UCMJ:
	Article 86.
	Article 91 (3 specifications):  Insubordinate conduct toward a chief petty officer
	Award:  Correctional custody for 30 days, reduction to E-1.  Reduction suspended for 6 months.
	No indication of appeal in the record.
20011207:	Retention Warning:  Advised of deficiency (Commanding Officer’s nonjudicial punishment held on 20011026 for violation of the Uniform Code of Military Justice, Article 86 - Absence without leave and Article 91 - Insubordinate conduct toward a chief petty officer.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

20020311:	Vacation of suspended reduction awarded at CO’s NJP of 20011207 due to further misconduct.

20020418:	NJP for violation(s) of UCMJ:
	Article 89:  Disrespect toward a superior commissioned officer.
	Article 90:  Willfully disobeying superior commissioned officer.
	Article 92:  Failure to obey a lawful order.
	Award:  Forfeiture of $649.00 for 1 month, restriction and extra duty for 30 days, reduction to E-X.
	No indication of appeal in the record.

20020905:	NJP for violation(s) of UCMJ:
	Article 91 (2 specifications):  Insubordinate conduct toward a petty officer
	Award:  Forfeiture of $577.00 for 2 months, restriction and extra duty for 45 days.
	No indication of appeal in the record.

Medical Record Entries Related to Characterization of Service or Reason for Discharge

20020620:	Behavioral Health Services, USS Harry S. Truman (CVN-75).  FR J_ E. G_ as referred b the ship’s PA-C for evaluation and treatment of a specific phobia, fear of the gas mask, and suspected claustrophobia.  Discussed rationale for, and possible consequences to, the evaluation and the service member was agreeable to the interview.  Discussed the limits to confidentiality within the military mental health-care system.  Reviewed available records.  By way of evaluation, the service member was interviewed for 2.0 hours and also completed a demographic questionnaire.  The service member was referred to sick-call on 14-Jun-02 after he refused to don his gas mask during a recent GQ.  Service member told his repair locker officer that he could not wear the mask due to breathing difficulties.  Medical record entry dtd 14-June-02 indicates that he does have a deviated septum and is a mouth breather.  He has been referred to ENT.
	Diagnostic impression:
	AXIS I:  Specific Phobia (Gas Mask), Provisional, r/o Claustrophobia
	AXIS II:  Deferred.
	AXIS III:  See medical record.
	AXIS IV:  Routine military service.
	AXIS V:  75/77.
		Recommendations/Plan:
		1)  Psychologically FFFD.  There are no apparent psychological contraindications to any planned or pending 		legal or administrative proceedings.
		2)  Recommend behavioral treatment for mask phobia
		3)  Conferred with SMO and DivO
		4)  RTC TBA by patient and HM1 Jackson relative to his work schedule.  If there are further questions or 			concerns please contact CDR B_ (Behavioral health Services/USS HARRY S. TRUMAN/CVN 75).  			Service member concurs with plan. 

Elements of Discharge:

Date Notified:					20020906
Reason for Discharge	 - PATTERN OF MISCONDUCT
	 - 
Least Favorable Characterization Authorized:	

Date Applicant Responded to Notification:		20020907
Rights Elected at Notification:
Consult with Counsel			
Obtain Copies of Documents		
Submit Statement(s) (date)			
Administrative Board			
GCMCA Review				

Commanding Officer Recommendation (date):	 (20020913)
Separation Authority (date):	NOT FOUND IN RECORD (20020923)*
	Reason for discharge directed:		
	Characterization directed:			NOT FOUND IN RECORD
Date Applicant Discharged:			20021004

*Extracted from DD Form 214, Block 25.

Additional Documents Submitted by Applicant and Considered By Board

Total Number of Pages:				6
       
Related to Period of Service Under Review:
	From Service and/or Medical Record:		Other Records:	

Related to Other Period(s) of Service:
	From Service and/or Medical Record:		Other Records:	

Related to Post-Service Period:
	Employment:					Finances:	
	Health/Medical Records:				Substance Abuse:	
	Family/Personal Status:				Education:	
 	Community Service Efforts:			References:	
	Criminal Records:			

Other:
	Additional Statements From Applicant:		From Representative:	
        	Other Documentation (Describe)		      

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 
25 January 2004, Article 1910-140, SEPARATION BY REASON OF MISCONDUCT - 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 violation of the UCMJ, Article 89 (disrespect), 90 (willful disobedience), 91 (Insubordinate conduct), 92 (disobey an order), and 123a (making and uttering checks without sufficient funds).

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