ex-BMSN, USN

current Discharge and Applicant’s Request

Application Received:  20080730
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MILPERSMAN 3630300

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

Summary of Service

Prior Service:
Inactive: USNR (DEP) 19959616 - 19950723  	Active:  

Period of Service Under Review:
Date of Enlistment:  19950724	Age at Enlistment:  
Period of Enlistment:  4 Years   Extension
Date of Discharge:  19991025     	Highest Rank/Rate:  E-4
Length of Service:   Years     Months   18 Days
Education Level:  	AFQT:  NFIR
Evaluation Marks:  Performance:  3.33 (3)                 Behavior:  3.0 (3)           OTA:  3.16

Awards and Decorations (per DD 214):  Rifle  Pistol     ESWS

Periods of UA/CONF:  19970107-19970117

NJP:  
- 19960502:  Article 86 (UA)
                     Awarded:     Suspended:   

- 19960912:  Article 86 (UA)
                     Awarded:     Suspended:   

- 19970121:  Article 86 (UA)
                     Awarded: CCU (30 days)   Suspended:   

- 19970620:  Article 92 (Disobeying a lawful order, drunk and disorderly), 2 specifications
                     Awarded:     Suspended:   

- 19991005:  Article 86 (UA)
                     Article 92 (Disobey a lawful order)
                     Awarded:      Suspended:  

SCM:      SPCM:      CC:  

Retention Warning Counseling:  

    - 19950502:  For UA and NJP
    - 19970121:  For UA and not obeying a lawful order.
    - 19970620:  For UA and not obeying a lawful order
    - 19971218:  Start a direct deposit account.

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:  

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 December 1997 until
21 August 2002, 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.  Desires educational benefits.
2.  Unjustly treated by command
3.  Denied medical treatment.
4.  Youth and immaturity.
5.  Post service conduct.

Decision

Date:  20081211		Location:  Washington D.C.	Representation:  

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

Discussion

:   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, specifically the paragraph concerning , regarding .

:  (/Propriety) .  The Applicant states he was harassed by his OIC and Senior Chief Petty Officer for not signing an EXTENSION AGREEMENT and he was illegally charged for infractions which did not occur.  The Applicant claims he filed two EEOC complaints against the Senior Chief and his record was expunged, but the NJPs were still used as a basis for his separation.  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.  Despite a thorough review, there is no record of an EEOC complaint in the Applicant’s military record.  The Applicant fails to present any documentation or statements from witnesses to support his claim he was subject to harassment nor did he provided any documentation to support he filed an EEOC complaint.  The Applicant’s record of service was marred by 5 NJP’s for violations of the Uniform Code of Military Justice (UCMJ):  Article 86 (UA) and Article 92 (Disobey an order or regulation).  If he thought any one of these charges were unfair, he could have appealed the NJP or Requested Mast with the ship’s Commanding Officer.  There is no evidence he took any action regarding these alleged injustices.  Without additional documentation to support the Applicant’s statements, the Board determined the awarded discharge characterization was appropriate and an upgrade based on undocumented mistreated by the command was unwarranted.

:  ()  .  The Applicant states he was under treatment for depression and intermediate explosive disorder and was denied proper treatment, which lead to his misconduct.  Additionally, he claims his command told him to keep quiet about his attempted suicide, which prevented him from obtaining proper treatment.  A thorough review of the Applicant’s medical records shows in May 1997 he was admitted to the hospital due to an “accidental overdose” of Motrin and Acetaminophen in an attempt to relieve the pain and itchiness from sunburn.  The Applicant is quoted as saying his Division mates told him it was okay to take a large amount of this medication.  There is no reference to the incident being labeled an attempted suicide.  He was not admitted to the Naval Hospital Psychiatric Ward nor put on suicide watch. 

 In August 1997, he was found to be alcohol dependent and sent to Navy Addictions Rehabilitation Department Level III resident rehabilitation from 11August 1997 to 05 September 1997.  His release and aftercare paperwork do not discuss depression at all.  Throughout his enlistment, the Applicant is seen frequently by medical doctors for a variety of physical complaints.  Nowhere in his medical records is a referral to a Mental Health Specialist or any documentation to support the Applicant’s claim he was being treated by a Mental Health Professional for depression and intermediate explosive disorder to 

be found.  Finally, nowhere in his medical records are anti-depressant drugs prescribed nor do they appear in his medications profiles.  Without additional documentation to support the Applicant’s statements, the Board determined the awarded discharge characterization was appropriate and an upgrade based on being denied medical care was unwarranted.

Issue 4:  () RELIEF NOT WARRANTED.  The Applicant claims he was young and immature when the incident occurred, and he became a role model sailor after his rocky start.  Since his earlier service was outstanding, he feels he rates an “Honorable” discharge.  While he may feel his youth and immaturity were the underlying causes of his misconduct, the record clearly reflects his willful and repeated misconduct demonstrated he was unfit for military service.  The evidence of record does not demonstrate the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Over the course of 4 plus years on active duty, the Applicant was the subject of  4 retention warnings and 5 NJP’s for violations of the UCMJ:  Articles 86 (UA) and Article 92 (Disobeying a lawful order or regulation).  Violation of Article 92 is considered a serious offense, punishable by a punitive discharge and up to two years imprisonment if adjudged as part of the sentence upon conviction by a special or general court-martial.  

When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under “Honorable” conditions.  “General (Under Honorable Conditions)” is appropriate if the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance outweighs positive aspects of the member’s military record.  The Applicant’s conduct clearly was not “Honorable” in nature.  The Board determined the awarded discharge characterization was appropriate and an upgrade based on youth and immaturity would be inappropriate.

Issue 5:  (Equity)  RELIEF NOT WARRANTED.  The Applicant states he is married and has four children.  He earned his Associates Degree and although working full time, is now enrolled in a BS program.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  Outstanding post-service conduct, 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, is considered.  The key word here is “Outstanding”.  The Board is looking for actions that go beyond simply daily living.  Documentation to help support a post service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificate (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; and documentation of a drug free lifestyle.  The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case by case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.

Although the Applicant states he has matured and changed, he did not provide a personal statement, supporting documentation of post service accomplishments or character witness statements to support his request for an upgrade.  The Applicant's efforts need to be more encompassing.  To warrant an upgrade the Applicant’s post service efforts need to be more encompassing.  The Applicant could have produced additional evidence as stated in the above paragraph with the full understanding completion of these items alone does not guarantee an upgrade.  The Board determined the characterization of service received, “General (Under Honorable Conditions)”, was an appropriate characterization considering the time served and the UCMJ violations involved, and based on the lack of post service documentation provided 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