ex-AZAR, USN
ND07-00211

Current Discharge and Applicant’s Request

Application Received:  20061213	Characterization Received:  
Narrative Reason:  MISCONDUCT Authority:  MILPERSMAN 3630600

Applicant’s Request:	Characterization change to:    
			Narrative Reason change to: 
Applicant’s Issues:	1. Suffers PTSD resulting from Sexual Assault
			2. Command neglected to follow Naval S.O.P. for reported sexual assault.
			3. Command initiated reprisal after Senator Murray’s Office contacted the command.
			4. Unjustified disciplinary action
			5. Work environment led to her miscarriage.
			6. Post Service

Decision

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

Date:  20070920    Location:  Washington D.C.  The Board found that 

Discussion
Issue 1: ().  The Applicant contends PTSD resulting from an alleged sexual assault incident resulted in her discharge. While she may feel that this was the underlying cause of his misconduct, the record clearly reflects her willful misconduct and demonstrated she was unfit for further service.  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 her issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that she was wrongfully charged and disciplined.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  

Issue 2: ().  The Applicant contends her command neglected to follow standard procedures of investigating a report of an alleged sexual assault incident.  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 her issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that her command did not follow proper procedures.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  

Issue 3: ().  The Applicant contends that after Senator Murry’s Office contacted her command concerning the command’s handling of the alleged sexual assault incident, that her command initiated reprisal against her.  While she may feel that this was the underlying cause for how the command treated her, the record clearly reflects her willful misconduct and demonstrated she was unfit for further service.  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 she was wrongfully charged and disciplined.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  

Issue 4: ().  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.  There is credible evidence in the record that the Applicant committed misconduct on numerous occasions.  The evidence of record does not demonstrate that the Applicant was not responsible for her conduct, that she should not be held accountable for his actions, or that medical issues were the cause of the misconduct.  When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  A 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 numerous occasions of counseling, one discharge warning, two NJPs for Article 86 (Unauthorized absence) and Article 91 (Disobeying a lawful order), and one Summary Court-Martial for Article 86 (Unauthorized absence), Article 92 (Dereliction of Duty and Disobeying a lawful order), and Article 134 [Dishonorably fail to maintain sufficient funds (9 specifications)].  Violation of Articles 91 and 92 are considered serious offenses for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial.  An upgrade to honorable would be inappropriate.

Issue 5: ().   The Applicant contends her work environment led to her miscarriage.  Both the Applicant and her command were unaware of the Applicant’s potential to be pregnant until 20070814.  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 her work environment was the cause of her miscarriage.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.

Issue 6: ().  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, good conduct, or favorable endorsements 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 Applicant, along with her statement, provided three character references for the Board to consider.  The Applicant's efforts need to be more encompassing.  For example, the Applicant could have produced evidence of a verifiable and continuous employment record, financial statements, documentation of educational pursuits ,and any documentation of community service.  The Board determined that the documentation provided by the Applicant did not mitigate the circumstances that resulted in the characterization of discharge.

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19950829 - 19950925  		Active:   	
Period of Service Under Review:
Date of Enlistment: 19950926	Years Contracted:  ; Extension:    		Date of Discharge:  19971024
Length of Service:  02  Yrs  00  Mths  16  Dys	Lost Time:  Days UA:  3  Days Confined:  13
Education Level:  	Age at Enlistment:  	AFQT:  35	Highest Rank/Rate:  AZAN
Evaluation marks (# of occasions):	Performance:  1.6(3)	Behavior:  1.3(3)	 OTA:  2.0 
Awards and Decorations (per DD 214):  NATIONAL DEFENSE SERVICE MEDAL

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

19961003:	CO's NJP -- Viol UCMJ Art. 91 – Disobeying a lawful order.  Awarded - FOP (amount) for (months); RIR (suspended x 6); Restr for (10days); Extra duties (10days).

19961003:	Retention Warning for (Violation of the UCMJ, Article 91 (Willful disobedience of an order).

19970619:	CO's NJP -- Viol UCMJ Art. 86 - Unauthorized absence, missing from pre-trial restriction muster on 19970606.  Awarded - FOP ($100.00) for (1month).

19970803:	SCM -- Viol UCMJ Art. 86 - UA from unit 19970503 until 19970505; viol Art. 92 (3 specs), Spec 1: Dereliction of duty on 19970622; Spec 2: Disobeyed a lawful order on 19970713; Spec 3: Disobey a lawful order on 19970722; viol Art. 134 – Dishonorably fail to maintain sufficient funds on 19970207, 19970210, 19970213, 19970218, 19970311, 19970317, 19970326, 19970329, and 19970331.
	Awarded -  RIR (E-1); Confinement (15days).

Discharge Process

Date Notified:					UNREADABLE
Reason for Discharge:	 - 
	 - 
	
Least Favorable Characterization:	

Date Applicant Responded to Notification:		19970821
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			
	Administrative Board			
	GCMCA review				

Administrative Board Date:	19970917
              Findings, by preponderance of the evidence:	BY   - .
	BY   - .
	BY  SEPARATION  WARRANTED.
              Recommendation on Separation: 	BY        
              Recommendation on Characterization:	BY  

Commanding Officer Recommendation (date):	 (19970925)
Separation Authority (date):	COMCRUDESGRU THREE (19971014)
              Reason for discharge directed:	 - 
              Characterization directed:	
Date Applicant Discharged:	19971024

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)  Peom, Monthly Diagram, Posttraumatic Stress Disorder Overview Information, Navy Equal Opportunity (EO) Policy, DOD Instruction Number 6490.4 (Mental Health Evaluation of Members of the Armed Forces, OPNAVINST 6000.B1 (Guidelines Concerning Pregnant Servicewomen  

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 
03 Oct 96 until 971212, Article 3630605, 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.

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 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