ex-AR, USN

Current Discharge and Applicant’s Request

Application Received:  20081125
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)	20001118 - 20001204  	Active:	

Period of Service Under Review:
Date of Enlistment:  20001205	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20010831	Highest Rank/Rate:  AR
Length of Service:   Year(s)     Month(s)   27 Day(s)
Education Level:  	AFQT:  73
Evaluation Marks:	Performance:  NOB	Behavior:  3.0 (1)	OTA:  3.00

Awards and Decorations (per DD 214):	NONE

Periods of UA/CONF:  

NJP:  
- 20010822:	Article 86 (UA)
	Article 91 (Disobeying a lawful order)
	Article 134 (Underage drinking), 2 specifications
	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.  Characterization of service not consistent with the facts of record.
2.  Discharged for Personality Disorder not misconduct and the character of service and narrative reason are inaccurate and  
     misleading.
3.  Abused alcohol in an attempt to self-medicate.

Decision

Date:  20090305		Location:  Washington D.C.	Representation:  DEPARTMENT OF  
                                                                                                                                                                               VETERANS AFFAIRS

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

Discussion

:  ()  .  The Applicant is requesting an upgrade to “General (Under Honorable Conditions)”, contending the “Under Other Than Honorable” discharge is not consistent with the facts of record.  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 one NJP on 22 August 2001, for violations of the Uniform Code of Military Justice (UCMJ):  Article 86 (UA), for one day; Article 91 (Disobeying an order) and Article 134 (Underage drinking).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board discerned no impropriety in the discharge action but did discern an inequity in the characterization of the Applicant’s service.  The Board considered the following mitigating factors: the short duration of the UA (one day), the mental condition of the Applicant, his age and length of service.  The Board also considered the Applicant’s post service conduct which consisted of the completion of a 12 step recovery program and good citizenship as noted in the letters of reference.  Based on the foregoing, the Board voted unanimously to change the characterization of service to “General (Under Honorable Conditions)”.

Issue 2:  ()  .  The Applicant contends he was discharged for a personality disorder, not misconduct and block #24 (character of service) and #28 (narrative reason) on his DD-214 are inaccurate and misleading.  In accordance with MILPERSMAN 1910-210, commands are required to process members for all reasons for which minimum criteria are met.  Thus, when separation processing is warranted for any reason in addition to personality disorder (convenience of the government), dual or multiple processing is required.  The Applicant was dual processed for separation by reason of misconduct due to the commission of a serious offense and convenience of the government due to a diagnosed personality disorder.  The evidence of record reflects on 23 August 2001, the Applicant was notified of dual administrative processing for a personality disorder and misconduct due to the commission of a serious offense and waived all of his rights.  Per the Chief of Naval Education and Training letter of 27 August 2001, authority was granted to discharge the member with an “Under Other Than Honorable” discharge for misconduct due to the commission of a serious offense as noted by his NJP for Article 91 violation.  The Applicant’s misconduct, warranting separation was clearly documented in the service record.  The separation authority determined the misconduct due to commission of a serious offense most clearly described the reason for discharge.  The reason for discharge and characterization of service as noted in blocks #24 and #28 of the Applicant’s DD-214 accurately reflects the reason for separation and characterization as directed by the separation authority.  Since no other Narrative Reason for Separation could more clearly describe why the Applicant was discharged, a change would be inappropriate.  The Board determined a change in the narrative reason for discharge would be inappropriate.

Issue 3:   )  .  In further support of his request for an upgrade, the Applicant contends he used alcohol to self –medicate.  The Applicant’s medical record of 24 July 2001 reflects he manifested a longstanding disorder of character but did not require, nor would benefit from, hospitalization or psychiatric treatment.  However, the examining 

medical provider noted the Applicant was strongly advised to contact the mental health clinic during working hours or the emergency room after hours for assistance if the need arose.  There is no evidence in the record or provided by the Applicant 
demonstrating he sought assistance for mental problems, despite being informed of services available 24 hours a day and a telephone number to call, if necessary.  Additionally, the Administrative remarks of 31 July 2001, contains the Applicant’s signed statement indicating he had been counseled concerning his alcohol and substance abuse and refused counseling or treatment for his alcohol/substance abuse.  The Board determined the Applicant was not justified in self –medicating and failed to utilize the resources offered to him.  Therefore, relief is denied pertaining to this issue.

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), Change 31, dated 20 Feb 01, effective 25 January 2001 until 21 August 2002, 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 (Disrespect) and Article 134 (Underage drinking).

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