ex-MM3, USN

Current Discharge and Applicant’s Request

Application Received:  20080929
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)	20000127 - 20000424  	Active:	

Period of Service Under Review:
Date of Enlistment:  20000425	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20040311	Highest Rank/Rate:  MM2
Length of Service:   Years     Months   17 Days
Education Level:  	AFQT:  96
Evaluation Marks:  Performance:  3.0 (4)               Behavior:  3.0 (4)           OTA:  3.15

Awards and Decorations (per DD 214):	   

Periods of UA/CONF:  

NJP:  
- 20040108:	Article 87 (Missing movement)
	Article 115 (Malingering)
	Awarded:     Suspended:  

SCM:      SPCM:     CC:      Retention Warning Counseling:  

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:  

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

Applicant’s Issues

1. Service benefits.
2. Record of service.
3. Mitigating medical problems.

Decision

Date:  20090205		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 .

:  ()  .  The Applicant’s, on behalf of their son, a former U.S. Navy service member, contend he is entitled to a discharge upgrade due to the member’s record of service.  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 member’s record of service was marred by one NJP for violations of the Uniform Code of Military Justice (UCMJ):  Article 87 (Missing movement) and Article 115 (Malingering).  These are considered serious offenses which 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 refer the member for a court-martial but opted instead for an administrative discharge.  Despite a Sailor’s record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  The NDRB determined the awarded discharge was appropriate and an upgrade founded upon the former service member’s record of service would be inappropriate.

:  ()  .   The Applicant’s contend the member suffered from a brain tumor which mitigates his misconduct.  Specifically, the tumor caused severe headaches while underwater on his assigned submarine.  The  member resorted to overdosing on pain killers in an effort to avoid deployment and further problems with having headaches.  In support of this Issue, the Applicant’s submitted a letter from the member’s civilian surgeon stating this tumor likely caused intense pain while submerged, and therefore mitigates his misconduct.  The record of military medical evidence does not support the Applicants’ contention.  Specifically, the member’s medical record does not indicate he ever complained of headaches or any other adverse symptoms while submerged on a submarine to Navy medical personnel.  Furthermore, the mental health evaluation performed 12 January 2004 following his overdose stated the following reason for his actions:

	“He reported a several-month history of gradually increasing emotional distress related to occupational
 stressors….Specific sources of occupational stress applied mostly to underway periods, including decreased 
communication with his family, frequent changes in operational plans and routines, a delay in his professional qualifications due to other work demands, and aspects of the physical environment of submarine duty (e.g., an aversion 
to recycled air).”

While the Board is extremely sympathetic towards the member’s current condition and understands the concern his family has for his well being, to include their attempt to obtain an upgrade to his discharge characterization, the documented evidence in the member’s military service and medical records does not support the premise the brain tumor was the cause of his misconduct during this time frame.  The member clearly indicated other stressors associated with his assignment, deployment, 

and the submarine environment in general as being the cause of emotional distress rather than his physical pain.  The claims from the Applicant’s their son confided to them of severe headaches, while well intended, are not documented in the member’s military medical record and there is no record of the member having severe headaches during his military services or any indicators he had issues which would have lead to a closer medical scrutiny of his brain.  Based upon the established and documented evidence found in the military medical record, the NDRB determined an upgrade founded upon mitigating medical problems, centered on a now detected brain tumor, 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 April 2005, 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 87 and Article 115.

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