ex-AN, USN

Current Discharge and Applicant’s Request

Application Received:  20080317
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MILPERSMAN 

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

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19991129 - 19991227  		Active:   
Period of Service Under Review:
Date of Enlistment: 19991228	Period of Enlistment:   Years   Extension	Date of Discharge:  20030812
Length of Service:    Yrs    Mths  16  Dys	Education Level:  	Age at Enlistment:  	AFQT:  52
Highest Rank/Rate:  AN	Evaluation Marks:  Performance: 3.0(1)	Behavior: 2.0(1)	OTA:  2.67
Awards and Decorations (per DD 214): NDSM

Discharged in Absentia (Over 30 days UA) (20030709-20030811 (33 Days)).

NJPs:	
	20021025:  Article 86 (Unauthorized absence), 3 specifications:
		     Specification 1:18 days, 20020913-20021001,
		     Specification 2: 9 days, 20020902-20020911,
		     Specification 3: 1 days, 20020509-20020510.
	                   Awarded – CC for 30 DAYS    Susp - 
	
SCMs:	
	20030327:  Article 86 (Unauthorized absence) 33 days, 20030120-20030222.
     Article 92 (Failure to obey lawful order), 5 specifications.
	                   Sentence – CONF for 30 DAYS FOP.

Retention Warnings:  
	20021028:  For VUCMJ, Article 86 (3 specifications), unauthorized absence from USS ENTERPRISE: 13 September to 1 October 2002; 9-11 September 2002; and 9 -10 May 2002 that led to your non-judicial punishment of 25 October 2002.

Types of Documents Submitted/reviewed

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 his medical issues would have made him unable to continue his service obligation and reenlist.  

Decision

Date:  20080627		Location:  Washington D.C	 Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  MISCONDUCT (AWOL).

Discussion

: ()  .   The Applicant claims his medical issues would have made him unable to continue his service obligation and made him unable to reenlist.  When reviewing a discharge, 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.  The NDRB generally does not consider the circumstances surrounding the Applicant’s stated condition, the implied incorrect diagnosis, nor the medical treatment given to the Applicant to be of sufficient nature to exculpate the Applicant’s misconduct.   During Board reviews the NDRB 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 Applicant had one retention warning, one nonjudicial punishment for 3 violation of Article 86 (Unauthorized absence), and one summary courts-martial for violations of Article 86 (Unauthorized absence more than 30 days) and 5 violations of Article 92 (Failure to obey a lawful order).  

The Applicant was diagnosed in December of 2000 with Ulcerative Colitis.  The Applicant received surgical treatment for his medical issue and was discharged from the hospital on 18 December 2000 in stable condition.  He was given 3 weeks convalescent leave with follow-up appointments scheduled to begin in January 2001.  The Applicant had a second surgery performed on 6 March 2001.  After the surgery, the Applicant was transferred to the recovery room in stable condition; there were no complications reported.  Approximately 18 months later, on 25 October 2002, the Applicant went to nonjudicial punishment and was charged with violation of Article 86 of the UCMJ.  The Applicant’s misconduct began 18 months after his medical condition was resolved.   Additionally, after the NJP the Applicant again entered into an unauthorized absence status for 33 days and was charged with 5 violations of Article 92 (Failure to obey a lawful order).   As a result of the latest offenses, the command awarded the Applicant  a summary court martial on 27 March 2003.  The Applicant was subsequently discharged during August 2003 for misconduct, commission of a serious offense.  

While the Applicant may feel his medical condition would have made him unable to continue his service obligation and reenlist there is no documentation in the record to support this claim.  The Applicant was returned to duty and began his misconduct 18 months after his medical conditions were corrected.  The Board found no documentation to support the Applicant’s claim the inability to either continue to complete his service contract or the possible inability to reenlist caused his misconduct.  The Board determined an upgrade would be inappropriate. 

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), 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.

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 86 (more than 30 days) and Article 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