ex-CSSR, 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)	20060906 - 20061112  	Active:	

Period of Service Under Review:
Date of Enlistment:  20061113	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20071001	Highest Rank/Rate:  CSSR
Length of Service:   Year(s)     Month(s)   19 Day(s)
Education Level:  ? (No GED or HS diploma: had some college credits to get into Navy)    AFQT:  40
Evaluation Marks:	Performance:  1.0 (1)	Behavior:  1.0 (1)	OTA:  1.0

Awards and Decorations (per DD 214):	Rifle  Pistol   

Periods of UA/CONF:  

NJP:  
- 20070723:	Article 91 (Insubordinate conduct towards a senior petty officer)
	Article 92 (Failure to obey an order or regulation) 
		Awarded:     Suspended:   

- 20070907:	Article 89 (Disrespect toward a superior commissioned officer)
	Article 90 (Willfully disobeying a commissioned officer) 
		Awarded:     Suspended:   

SCM:            SPCM:            CC:  

Retention Warning Counseling:  
- 20070205:	For deficiencies in your performance and/or conduct.  As evidence by numerous negative entries on your Recruit Personnel Data record (Hard Card) to include: Refusal to train to wit: non-compliance with battle station training phase requirements, failure to follow orders and instructions including swim-jump qualifications and substandard performance.  

Administrative Corrections to the Applicant’s DD 214

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

	, GRADE RATE OR RANK should read: “CSSR”
	, PAY GRADE should read: “E-1”
 NARRATIVE REASON FOR SEPARATION should read: “MISCONDUCT (SERIOUS OFFENSE)”
	
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 1910-142, 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 89 (Disrespect toward a superior commissioned officer), Article 90 (Willfully disobeying a commissioned officer), Article 91 (Insubordinate conduct towards a Senior Petty Officer) 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.  Applicant claims her misconduct was due to mitigating circumstances. 

Decision

Date:  20090827		Location:  Washington D.C.	Representation:  

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

Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.  In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant’s record of service included  NAVPERS 1070/613 (Page 13) warning, and  non-judicial punishments (NJPs) for  of the Uniform Code of Military Justice (UCMJ): Article 89 (Disrespect toward a superior commission officer), Article 90 (Willfully disobeying a commissioned officer), Article 91 (Insubordinate conduct towards a senior petty officer: using vulgar language) and Article 92 (Failure to obey an order or regulation: Having sex on board a Naval vessel).   Based on the offense(s) committed by the Applicant,  command administratively processed  for separation. When notified for Administrative Separation Processing, the Applicant elected  rights to consult with qualified counsel and to submit a written statement for consideration to the separating authority. 

:  (Decisional) ()  .  The Applicant contends her misconduct was due to her allegedly being sexually assaulted by two persons aboard the USS TORTUGA.  From the time the Applicant was being recruited until her discharge, she has had a tumultuous ten months in the Navy.  During her MEPS medical examination, it was noted and recorded twice that she was extremely immature.  While at boot camp, the Applicant was counseled due to her deficiencies in performance and/or conduct as evidenced by numerous negative entries in her Recruit Personnel Data record (Hard Card) to include: refusal to train to wit, non-compliance with battle station training phase requirements, failure to follow orders and instructions including swim-jump qualifications and substandard performance.  On 29 November 2006, she was evaluated by medical staff due to her having occupational problems.  On 19 December 2006, the Applicant was again evaluated at the Recruit Evaluation Unit (REU).  She was given a battery of psychological tests to assist in the diagnostic evaluation.  Her tests results suggested significant problem areas.  Specifically, she appears to have responded in a naively defensive manner, portraying herself as a person of unusually high virtue and morality.  The Applicants responses also suggest oppositional and histrionic/theatrical traits.  At that time, the Applicant said she was being put out of the Navy because nobody liked her. It was noted on 1 February 2007, that the Applicant was supposed to be discharged due to occupational problems, but for some reason, the separation never took place and she was allowed to transfer out to the fleet.  

After training, the Applicant reported to the USS TORTUGA (LSD 46) in April 2007, where she was the subject of two NJPs in five months which resulted in her discharge on 1 October 2007 due to Misconduct – Commission of a Serious Offense.  Her first NJP on 23 July 2007, the Applicant was charged with having sex on board a naval vessel.  The commanding officer commented that the Applicant admitted to having sexual intercourse on board ship with two different individuals and shows no remorse.  In conjunction with this NJP, the Applicant was seen by medical personnel on the USS TORTUGA for suicidal ideations.  Although the Applicant claims it was due to the alleged rape, the written medical records show it was due to having other issues in her division.  She stated “the guy’s in my division pick on me and harass me.”  Other than the harassment allegation, she had no complaints with her job.  She admitted making this statement so that people would listen to her.  She denied anyone E-6 and above “made her feel this way.”  During this medical visit, the Applicant denied having any other issues.  No entry in her medical records was found that involved hospitalized for a week aboard ship due to suicidal ideations.  On 4 July 2007, the Applicant was seen again by medical personnel complaining of nausea, dizziness, and soreness on upper body including arms.  The Applicant stated that she thought she was pregnant.  She added that she was sexually active and had unprotected sex some time in mid to late June.  The Applicant denies using birth control and expressed her desire to get pregnant. 
Due to the Applicant’s documented personal instability, the Board discerned no impropriety or inequity in the discharge action as it pertains to the characterization of the Applicant’s service. The Board determined that a U.S. Department of Veterans Affairs (VA) rating decision in support of the Applicant had no bearing on the NDRB’s decision on propriety and equity of her discharge.  As a support organization, the VA errs in support of applicants in order to provide world-class medical and educational support, whereas the NDRB must base discharge upgrade decisions on matters of record and fact.   In the Board’s opinion, the command acted appropriately at the time of discharge based on the circumstances and facts at hand.  Besides the VA medical evaluations, which were done after her discharge, the Applicant provided no documentation (i.e. Sexual Assault Victim Intervention (SAVI) report, criminal investigation regarding the allegations of sexual assault, etc.) that supports her claims.  On her separation physical dated 12 September 2007, she admitted her misconduct by stating “I am getting discharged because I slept with my LPO.”  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and discharge process, the Board found   Therefore, the awarded characterization of service shall   and the narrative reason for separation shall remain .  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of  discharge.  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews and Post-Service Conduct.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe 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:  After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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.  There are veterans organizations such as the American Legion and the Association of Service Disable Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the NDRB’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 BCNR can make changes to reenlistment codes.  Additionally, the NDRB 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended 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 BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.  

Post-Service Conduct:  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  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 during Board reviews.  Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (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; attendance at or completion of higher education (official transcripts); 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  in-service misconduct was an aberration and not indicative of the member’s overall character.

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 NDRB 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