ex-SA, USNR

Current Discharge and Applicant’s Request

Application Received:  20080304
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MILPERSMAN 3630650 (in lieu of trial by court martial)

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 

Summary of Service

Prior Service:
Inactive:  NONE				Active:   
Period of Service Under Review:
Date of Enlistment: 19940923	Period of enlistment:   Years   Extension	Date of Discharge:  19960809
Length of Service:  Active:    Yrs    Mths  00  Dys	Inactive:    Yrs    Mths  17  Dys
Education Level:  	Age at Enlistment:  	AFQT:  37
Highest Rank/Rate:  SN	Evaluation marks:  Performance: 3.0(1)	Behavior: 1.0(1)	OTA:  1.83
Awards and Decorations (per DD 214):  

Periods of UA/CONF:  

NJPs:	
	19960718:  Art .  Awarded -  .  Susp - .  
                                  Suspension vacated 19960806.

Types of Documents Submitted

Related to Military Service:	DD 214:  	Service and/or Medical Record:  		Other Records:  

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

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1. The Applicant claims she has a disability and needs help for a bad arm problem she developed while on active duty.
2. The Applicant claims her DD Form 214 states she has an honorable characterization but the computer reflects other than honorable.

Decision

Date:  20080612		Location:  Washington D.C	 Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  IN LIEU OF TRIAL BY COURTS-MARTIAL.

Discussion

: ()  .  The Applicant claims she has a disability and needs help for a bad arm problem she developed while on active duty.  The NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline.  

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.  A review of the Applicant’s service record indicates a history of problematic behavior.  On 18 July 1996, the Applicant was awarded 30-days restriction and extra duty at Captain’s Mast for fraternization; she immediately broke restriction and entered into a period of unauthorized absence.  She shortly checked herself into the Naval Hospital Bremerton and informed a psychiatrist she would harm herself if she was returned to restriction and she made comments she hated the Navy: the doctor found her fit for duty.  On 22 July 1996 the Applicant was placed in pre-trail confinement after being declared a flight risk and was charged with numerous violations of the Uniform Code of Military Justice, to include Articles: 91 (disrespect to a first class petty officer); 92 (disobeying a lawful order), 4-specifications; 108 (destroying military property); 115 (intentionally injuring herself by injecting staples into her wrist and scraping her wrists with staples to avoid restriction); and 134 (breaking restriction), 2-specifications.  The command charged the Applicant and to escape court-martial she requested a discharge in lieu of trial by court-martial; she was discharged in August 1996.  

In March 2008, the NDRB received the Applicant’s petition for an upgrade which included a medical evaluation dated 8 November 2007 documenting she has suffered with an Essex-Lopresti and longitudinal forearm instability for several years.  The NDRB does not consider the circumstances surrounding the Applicant’s stated problem with her arm to be of sufficient nature to exculpate the Applicant’s misconduct nor did the Board find the Navy responsible for any injury as presented by the post-service evaluation.   The Board determined an upgrade was not warranted.

For the Applicant’s information, the NDRB does not have the authority to grant a disability discharge.  The Applicant is directed to the ADDENDUM page, specifically the paragraph concerning Medical Conditions and Misconduct. 	
  
: ()  .   The Applicant claims her DD Form 214 states she has an honorable characterization but the computer reflects other than honorable.  On 9 August 1996, Personnel Support Detachment (PSD), Bangor, Washington issued the Applicants DD Form 214 with reason for separation listed as in lieu of trial by courts-martial but incorrectly listed her characterization as honorable.  On 13 August 1996 PSD, corrected the DD Form 214 and generated the proper characterization of other than honorable conditions discharge.  The Applicant received an under other than honorable conditions discharge and the DD Form 214 has been corrected to reflect the Applicants proper characterization.  The Board determined relief was not warranted.     

After a thorough review of the available evidence, to include the Applicant’s Summary of Service,   Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found 

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 22 July 1994 until 2 October 1996, Article 3630650, PROCEDURES FOR PROCESSING ENLISTED PERSONNEL FOR SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL. 

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, 92, 108, 115, 134.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications.

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 other medical related reasons.  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