ex-ET3(SS/SW), USN
ND07-00290

Current Discharge and Applicant’s Request

Application Received:  20070111 	Characterization Received:  
Narrative Reason:  MISCONDUCT Authority:  MILPERSMAN 1910-142

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1. Discharge physical did not properly diagnose medical condition
2. Applicant not given assistance in solving bad check writing
			3. Applicant did not receive proper out processing guidance regarding his discharge
			4. Medical conditions possibly contributed to his behavior
			5. Applicant was under the influence of prescribed medicine during disciplinary period
			6. Discharge was based on an arrest by civil authorities and charges were dropped
			7. Requested Admin Board but was not provided the opportunity
			 
Decision

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

Date:  20071004		Location:  Washington D.C. 	Representative: American Legion

Discussion

Issues 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: ().  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 his contention that the Navy failed to provide assistance in solving his bad check writing issue.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  

Issue 3: ().  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 his contention that he did not receive proper guidance regarding his discharge.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  Additionally, the record reflects that the Applicant waived his opportunity to consult with qualified counsel when he was notified that he would be administratively processed for discharge.

Issues 4&5: ().  The NDRB generally does not consider the circumstances surrounding the Applicant’s stated condition, the medical diagnosis, nor the medical treatment given to the Applicant to be of sufficient nature to exculpate the Applicant’s misconduct.  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 his contention that the Applicant medical issues resulted in his misconduct.  When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  A discharge under other than honorable conditions 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 a violation of the Uniform Code of Military Justice (UCMJ) Article 86 (UA for 25 days) and civil felony charges.  An upgrade to honorable would be inappropriate.  

Issue 6: ().  Commission of a serious offence does not require adjudication by nonjuducial, judicial proceeding or civilian conviction: however, the offense must be substantiated by a preponderance of evidence.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his action. The Applicant chose not to consult with counsel, chose not to request an Administrative Board, and chose not to submit any documentation to the Separation Authority.  

Issue 7: ().  The Applicant contends he was not offered Administrative Board proceedings.  The record clearly reflects that the Applicant waived all of his entitled rights associated with his Administrative Separation process.  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.  

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)	19881005 - 19900907  	Active:   -R	19910414 - 19961004  
	USNR (DEP)	19980423 - 19980429  COG		USN		19980430 - 19990504  HON
Period of Service Under Review:
Date of Enlistment: 19990505		Years Contracted:  	Date of Discharge:  20030814
Length of Service:  05  Yrs  03  Mths  10  Dys	Lost Time:  Days UA:  25  Days Confined:  
Education Level:  	Age at Enlistment:  	AFQT:  67	Highest Rank/Rate:  ET3
Evaluation marks (# of occasions):	Performance:  3.5(2)	Behavior:  4.0(2)	 OTA:  3.50 
Awards and Decorations (per DD 214):  NATIONAL DEFENSE SERVICE MEDAL(2), SEA SERVICE DEPLOYMENT RIBBON, SECOND GOOD CONDUCT MEDAL 22APR01, FLAG LETTER OF COMMENDATION(2)

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

19990505:	Applicant Immediate reenlistment contract signed for 6 years in the Naval Reserve.

19990626:	Medical Record: Applicant admitted to clinic-passed out during physical training.

19990722:	Medical Record: Applicant fell out of chair during class with seizure.

20030310:	Applicant to unauthorized absence 0700.

20030405:	Applicant in hands of civilian authorities 0001.

20030405:	[Admin Sep dtd 20030728] Charges: Fugitive from Camden County, GA.  Extridicted to Camden County, GA on 

20030425:	[Admin Sep dtd 20030728] Criminal charges filed, two counts of theft by deception and bad checks.  Extradited to Camden County Jail.

20030603:	Felony charges filed against applicant.

Discharge Process

Date Notified:					20030618
Reason for Discharge:	 - 
Least Favorable Characterization:	

Date Applicant Responded to Notification:		20030618
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			
	Administrative Board			
	GCMCA review				

Commanding Officer Recommendation (date):	 (20030728)
Separation Authority (date):	COMMANDER, NAVY REGION, MID-ATLANTIC (20030805)
              Reason for discharge directed:	 - 
              Characterization directed:	
Date Applicant Discharged:	20030814

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)  Department of Veterans Affairs, Decision
Letters from Yale University, School of Medicine, Department of Neurology
Letter from Neurosurgeons of Central Connecticut, P.C.
Results of MRI from Middlesex Hospital
Emergency Department report from Lawrence and Memorial Hospital

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.

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