ex-AGAN, USN

Current Discharge and Applicant’s Request

Application Received:  20080916
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) 20030723 - 20040701  	Active:  

Period of Service Under Review:
Date of Enlistment:  20040702	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20060614	Highest Rank/Rate:  AGAN
Length of Service:   Year     Months   13 Days
Education Level:  	AFQT:  68
Evaluation Marks:  Performance:  NFIR                Behavior:  NFIR            OTA:  NFIR

Awards and Decorations (per DD 214):	   

Periods of UA/CONF:  

NJP:  
- 20050513:  Article 86 (UA)
                     Article 92 (Failure to obey an order or regulation)
                     Awarded:       Suspended:   

- 20060306:  Article 86 (UA)
                     Awarded:       Suspended:   

SCM:      SPCM:      CC:  

Retention Warning Counseling:  

- 20050513:  For failure to go to your appointed place of duty, adherence to uniform regulations, and UA. 

Administrative Corrections to the Applicant’s DD 214

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

	Block 4a, Grade, Rate and Rank, should read “AGAA”
	Block 4b, Pay grade, should read “E2”
	
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:  

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 violations of the UCMJ:  Article 86 (UA) and Article 92 (Failure to obey an order or regulation).

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

Applicant’s Issues

1.  Discharge unjust due to medical condition. 

Decision

Date:  20090129              	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 his discharge was unjust due to a medical condition.  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 a retention warning and a two NJP’s for violations of the Uniformed Code of Military Justice (UCMJ):  Article 86 (UA) and Article 92 (Failure to obey an order or regulation).  These violations are considered serious offenses, punishable by punitive discharge and confinement if adjudicated and awarded by a special or general court-martial.  The command did not pursue a punitive discharge but opted instead for an administrative discharge.  

After a thorough review of the Applicant’s Medical Records, supporting documents, facts, and circumstances unique to this case, the Board determined that his medical condition may have mitigated, in part, his misconduct.  The Applicant had a repeated problem with oversleeping and failing to report to work on time.  After the first NJP, the Applicant was seen by medical personnel and eventually had surgery 2 months later to repair a medical condition that may have contributed to his oversleeping.  The Medical Records show the Applicant kept seeking additional medical treatment, to include another surgery, until he had his second NJP and eventual was discharged.   The NDRB discerned no impropriety in the discharge action but did discern an inequity in the characterization of the Applicant’s service.  The Board determined the characterization of the discharge should be upgraded to a “General (Under Honorable Conditions)” based on the mitigating medical issues, but the narrative reason shall remain Pattern of Misconduct.   

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 the discharge was proper but not equitable.

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