ex-CSSN, USN

Current Discharge and Applicant’s Request

Application Received:  20080814
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MILPERSMAN 

Applicant’s Request:  Characterization change to:  
		       Narrative Reason change to:  CONVENIENCE OF THE GOVERNMENT

Summary of Service

Prior Service:
Inactive: USNR (DEP) 20040227 - 20040921  		Active:  

Period of Service Under Review:
Date of Enlistment:  20040922	   Period of Enlistment:   Years   Extension	  Date of Discharge:  20070208
Length of Service:   Years     Month   27 Days	Education Level:  	Age at Enlistment:  	AFQT:  74
Highest Rank/Rate:  CSSN	Evaluation Marks:  Performance:	 NFIR	Behavior:  NFIR	OTA:  NFIR
Awards and Decorations (per DD 214):	Rifle  Pistol     

Periods of UA/CONF:  20061218-20070207 (52 Days)

NJP:  
- 20060629:  Article 86 (UA)
                     Awarded:       Suspended:   

- 20050109:  Article 92 (Failure to obey a lawful order)
                     Awarded:    Suspended:  

SCM:      SPCM:      CC:  

Retention Warnings:  
- 20050114:  For NJP on 14 January 2005 for violation of the UCMJ Article 92, Failure to abbey a lawful order.

- 20060918:  For unknown right knee pain.

- 20060629:  For NJP on 29 June 2006 for violation of the UCMJ Article 86, unauthorized absence.
.
Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

	  “02 Years, 02 Months, 20 Days”

The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate.

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), Change 11, effective 26 April 2005 until Present, Article 1910-140, SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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 and 92.

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

Applicant’s Issues

1.  Mitigating circumstances.
2.  Requested hardship discharge.

Decision

Date:  20081121		Location:  Washington D.C.	Representation:  

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

Discussion

:  ()  .  The Applicant contends he is entitled to a discharge upgrade due to mitigating circumstances which contributed to his misconduct.  Specifically, he claims marital problems and the suicide of a friend caused him to make poor decisions which resulted in his discharge.  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 record of service was marred by three retention warnings and two NJPs for violations of the Uniform Code of Military Justice (UCMJ):  Article 86 (UA) and Article 92 (Disobeying a lawful order).  The Applicant was also reported UA between 18 December 2006 and 7 February 2007, but was not prosecuted for this violation of Article 86.  The record of evidence shows the dates for the Applicant’s NJPs were 9 January 2005 and 29 June 2006.  The Applicant does not provide the date of his friend’s suicide, but the NDRB is able to infer from the Applicant’s psychiatric report dated 7 November 2006 the suicide occurred around 1 October 2006.  The NDRB rejects the Applicant’s contention the death of the Applicant’s friend mitigates his misconduct since the NJPs predate the death of his friend.  The NDRB also rejects the Applicant’s contention marital problems mitigated his misconduct.  While he may feel problems with his wife lead him to make poor choices, the record of evidence does not show the Applicant was not responsible for his actions or should not be held accountable for his misconduct due to marital problems.  The Board determined the awarded discharge was appropriate and an upgrade would be inappropriate.

:  ()  . The Applicant contends he is entitled to a discharge upgrade because he was being processed for a “hardship” discharge when he was discharged with an “Under Other Than Honorable” conditions.  The Applicant appears to understand his discharge was based on his unauthorized absences between 18 December 2006 and 7 February 2007.  The record of evidence does not support this understanding.  The narrative reason for his discharge was due to a “Pattern of Misconduct.”  Separations processed for this reason require two or more NJPs during an enlistment.  The record of evidence shows the Applicant was subject to two NJPs for earlier offenses as discussed under Issue 1 above, but was not taken to NJP for the final period of unauthorized absence.  Furthermore, the record of evidence does not show any evidence of processing for a discharge other than the one given to him for the pattern of misconduct.  Based on the record of two NJPs the NDRB determined the narrative reason was appropriate and concluded a change to the narrative reason would be inappropriate.

In considering whether a change to the characterization of service is warranted in the Applicant’s case, the Board carefully considered the Narrative Summary of the Applicant’s inpatient psychiatric treatment between 31 October 2006 and 7 November 2006.  The Applicant was admitted to psychiatric care for “anxiety, hyper-vigilance, poor sleep, irritability, and derealization…” after witnessing a friend kill himself.  However, the description of the Applicant’s treatment focuses largely on the Applicant’s substance abuse.  This abuse was documented by a urinalysis which indicated use of cocaine, amphetamines, and methamphetamines while in the Navy; “frequent cannabis use and associated amotivation” while in high school; and daily consumption of alcohol while in the Navy.  Upon discharge from the hospital the Applicant was diagnosed with four disorders; Acute Stress Disorder, Cocaine Abuse, Methamphetamine Abuse, and Personality Disorder.  The instructions issued to the Applicant upon discharge clearly indicate the following facts relevant to the Applicant’s petition:  the Applicant was fit for full duty; the Applicant was recommended for administrative separation if the command could show evidence his disorder interfered with his duties; and the Applicant should be held strictly accountable for any misconduct in the event he was retained 

in the Navy.  The NDRB notes the Applicant’s command did not initiate discharge proceedings at this time.  Had the command desired to do so, the command could have sought administrative separation for the wrongful use of cocaine, amphetamines, and methamphetamines; fraudulent enlistment for not accurately disclosing pre-service use of marijuana; commission of a serious offense (NJP for violation of Article 92); or a pattern of misconduct (NJP for violation of Articles 86 and 92).  The record of evidence does not show any action was taken by the command in response to his confirmed and admitted drug use until the Applicant went UA during December 2006. Even then, the command did not pursue separation for the misconduct subsequent to the suicide of his friend.  As discussed earlier, the “Pattern of Misconduct” was sufficiently established by the Applicant as shown by his NJPs on 9 January 2005 and 29 June 2006.  There is no evidence the command acted inequitably in assigning the “Under Other Than Honorable” conditions characterization of service.  The NDRB 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 or for any basis wherein an Other Than Honorable Discharge is authorized, 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