ex-AMAA, USN

Current Discharge and Applicant’s Request

Application Received:  20080529
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)	20000330 - 20000416  		Active:   

Period of Service Under Review:
Date of Enlistment: 20000417	Period of Enlistment:  Years   Extension	Date of Discharge: 20030204
Length of Service:  Years     Months   18 Days	Education Level: 	Age at Enlistment: 	AFQT: 51
Highest Rank/Rate: 	AMAN	Evaluation Marks: Performance:	2.8 (5)	Behavior: 2.0 (5)	OTA: 2.46
Awards and Decorations (per DD 214):	NDSM AFEM SSDR

NJPs:  
20000815:  Article 91 (Disobedience)
                   Article 92 (Failure to obey an order or regulation)
                   Awarded:      Suspended:  

20001102:  Article 86 (UA)
                   Article 134 (Disorderly conduct, drunkenness)
                   Article 92 (Failure to obey order or regulation) 
                   Awarded:      Suspended:   

20010705:  Article 86 (UA)
                   Awarded:      Suspended:  

20030108:  Article 134 (Wrongfully exposed, in an indecent matter to public view, his naked body).
                   Awarded:     Suspended:  
SCMs:  

SPCMs:  

CC:  

Retention Warnings:  
20000815:	 For Commanding Officer’s NJP on 20000815 for VUCMJ ART 91, Disobedience; VUCMJ ART 92, Orders      
                   violation. 

20001106:	 For your personal conduct has been noted as a detriment to the U.S. Naval service.  The finding of guilty for  
                   your violation of Articles 86 (UA), Article 92 (Failure to obey a lawful general order), and 
                   Article 134 (Drunkenness) at CO’s NJP held on 20001031 is evidence that your personal conduct is less than 
                   upstanding.
 
20010705:  For the award of CO’s NJP for violation of the UCMJ, Article 92 (Violation or failure to obey lawful general  
                    order or regulation) and Article 86 (UA).

Retention Warnings (cont):  

20010902:  For your failure to comply with the command ADP user agreement by storing inappropriate material on 
                   government computers.

Types of Documents Submitted/reviewed

Related to Military Service:	
                                         DD 214:  	 Service/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 Congress member:    

              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 1910-142, 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 91- Insubordinate conduct, Article 92 – Failure to obey lawful order or regulation, and Article 134 (2 specifications)- Drunk and disorderly conduct and Indecent exposure.

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

Applicant’s Issues

1.  Unjust discharge due to lack of evidence.
2.  Misdiagnosed depression.

Decision

Date:  20081016	          	Location:  Washington D.C.	Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  MISCONDUCT (COMMISSION OF A SERIOUS OFFENSE).

Discussion

: ()  .  The Applicant contends his characterization of service should be upgraded because his discharge was unjust and lacking evidence.  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.  The Applicant’s service was marred by 4 retention warnings and 4 NJP’s for violations of the Uniform Code of Military Justice (UCMJ):  Article 86 (UA); Article 91 (Insubordinate conduct); Article 92 (Failure to obey lawful order or regulation); and Article 134 (Drunk and disorderly conduct and indecent exposure of his naked body in public view), 2 specifications.  These violations are considered serious in nature and could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentence by a special or general court-martial.  The command did not pursue a punitive discharge but opted instead for an administrative discharge. 

The Applicant’s argument the discharge was unjust and lacked evidence is without merit and contradicted by the evidence contained in his record which indicates that he was found guilty at NJP on four separate occasions during this enlistment for several serious offenses that could have resulted, as stated above, in a punitive discharge.  The Board determined there was sufficient evidence to support separation based on the aforementioned misconduct and the characterization of discharge was just and appropriate in light of the nature and seriousness of the offenses committed by the Applicant and the absence of mitigating circumstances.

The Applicant has requested an upgrade in his characterization to “General (Under Honorable Conditions)”.  For the edification of the Applicant, a “General (Under Honorable Conditions)” discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record.  A discharge “Under Other Than Honorable Conditions” is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the naval service.  The Board acknowledged the Applicant’s conduct, which forms the primary basis for determining the character of his service, reflected a significant departure from the conduct expected of a Sailor and the awarded characterization was appropriate.  The Board determined an upgrade would be inappropriate.
 
: () .  The Applicant contends the characterization of discharge should be upgraded because he was misdiagnosed with Depression.  He further contends a diagnosis of Bipolar Disorder was made after his discharge from the Navy.  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.  The Applicant’s military medical records were requested from the Department of Veterans Affairs by the NDRB on 9 June 2008 and had not been received at the time of this document review.  However, there is no evidence in the records available for review, nor has the Applicant produced any evidence or medical documentation to support the contention he was misdiagnosed by military medical personnel.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  However, even if the Applicant could prove he was misdiagnosed, this would neither amount to a justification nor to a defense 

for the Applicant’s own misconduct unless he could demonstrate that he was declared  incompetent to appreciate the wrongfulness of his actions.  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 

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 or is referred to a court martial 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 special 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.  The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

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