ex-CTRSR, USN

Current Discharge and Applicant’s Request

Application Received: 20090427
Characterization of Service Received:    
Narrative Reason for Discharge:     (SERIOUS OFFENSE)
Authority for Discharge:   MILPERSMAN 

Applicant’s Request:  Characterization change to:  
		       Narrative Reason change to:  
  
Summary of Service

Prior Service:
Inactive:	USNR (DEP)	20050709 - 20050919  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20050920	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20070112	Highest Rank/Rate:  CTRSN
Length of Service:   Year(s)     Month(s)   23 Day(s)
Education Level:  	AFQT:  66
Evaluation Marks:	Performance:  2.7 (3)	Behavior:  2.0 (4)	OTA:  2.54

Awards and Decorations (per DD 214):	 

Periods of UA/CONF:  

NJP:  
- 20061019:	Article 111 (Drunken or reckless operation of vehicle), 2 specifications
	Specification 1: Physically in control of a passenger car while drunk.
	Specification 2: Physically in control of a passenger car in a reckless manner by traveling at an excessive speed, 42 MPH in a 25 MPH zone.
	Awarded:     Suspended:    Suspension vacated 20061205

- 20061206:	Article 81 (Conspiracy)
	Article 92 (Failure to obey lawful order)
	Awarded:    Suspended:  

SCM:  	SPCM:  	CC:  	Retention Warning Counseling:  

Administrative Corrections to the Applicant’s DD 214

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

	  “MILPERSMAN 1910-142”
	  “JKQ”
	  “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/To Representation:		From/To 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 92, Failure to obey a lawful order or regulation and Article 111, Drunken or reckless operation of a vehicle.

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

Applicant’s Issues

1. Seeking to use Montgomery GI Bill benefits.
2. Should not have been processed for a pattern of misconduct.
3. Depressed and not mentally stable.
4. Seeks post-service conduct consideration.

Decision

Date:  20100107            	Location:  Washington D.C.	Representation:  

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

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  non-judicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 81 (Conspiracy to bring wife to the gym on base to visit the Applicant while he was on restriction), Article 92 (Failure to obey a lawful order by failing to get permission from the commanding officer for his wife to visit him while on restriction), and Article 111 (Drunken and reckless operation of a vehicle -2 specifications).  The Applicant also had a pre-service waiver for operating a vehicle after illegally consuming alcohol prior to entering the Navy.  Based on the offenses committed by the Applicant,  command administratively processed  for separation due to commission of a serious offense.  During administrative separation processing, the Applicant waived  rights to consult with qualified counsel, submit a written statement, and request a review by the general courts-martial convening authority.  He did elect his right to receive copies of all documents forwarded to the separation authority supporting his separation.  

:  (Nondecisional) The Applicant provided a statement on his DD Form 293 indicating that with an Honorable discharge, he would be able to use the Montgomery GI Bill benefits and pursue his goals.  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.

:  (Decisional) ()  .  In seeking an upgrade to Honorable, the Applicant contends he should not have been processed for a pattern of misconduct because he was punished for the original offense of driving under the influence of alcohol.  As noted supra, the evidence of record reflects that the Applicant was awarded NJP for alcohol-related offenses and failure to obey lawful orders while on restriction and subsequently administratively discharged due to misconduct based on the commission of a serious offense.  A service member may be processed for separation due to the commission of a serious military or civilian offense when the offense or a closely related offense is a violation of the UCMJ and warrants a punitive discharge in accordance with the UCMJ.  Both the Article 92 and 111 offenses committed by the Applicant are considered serious offenses as outlined in the UCMJ.  Furthermore, being subjected to punishment at an NJP proceeding does not precluded a service member from being administratively processed for separation since administrative separations are not considered punitive in nature.  Based on a review of the evidence of record and evidence presented by the Applicant, the Board determined there was sufficient evidence to support a administrative separation based on misconduct due to the commission of a serious offense and that an upgrade to Honorable is not warranted, taking into consideration the frequency and seriousness of the offenses committed.  The Board also determined that the Applicant’s DD Form 214 which indicates that his narrative reason is “pattern of misconduct” is not correct.  Per the Administrative Separation Processing Notice of 19 December 2006, the Applicant was notified of administrative separation processing for misconduct due to commission of a serious offense.  The commanding also forwarded a letter of 5 January 2007 to the Applicant notifying him that he would be separated due to misconduct (serious offense).  As indicated on page one of this decisional document, the NDRB has recommended an administrative correction on the Applicant’s DD Form 214 to reflect the correct narrative reason.
 
:  (Decisional) ()  .  The Applicant contends at the time he committed the offenses that resulted in his discharge, he was very depressed and not mentally stable.  The Applicant also contends that before these incidents occurred he was an outstanding sailor.  He submitted a medical record from the Department of the Army, Fort George G. Meade, Maryland of 30 October 2006, which reflects he was seen by a licensed clinical psychologist who noted that he had started treatment for “poor sleep, poor judgment, and impulse control problems.”  It was noted that his symptoms were related to a diagnosis of Bipolar Disorder NOS, and that treatment goals and prognosis had not yet been determined.  Additionally, the Applicant submitted a medical progress note which indicated that he was brought to the emergency room and hospitalized for 6 days (from 21-26 October 2006) after speaking to his chaplain regarding suicidal thoughts.  The Applicant reported to medical personnel his history of depression dating back to high school, was placed on Zoloft, assigned to group and individual therapy and given a diagnosis of major depressive disorder and alcohol abuse.  At the time of his discharge, his command determined that the Applicant was in no apparent distress and his judgment was intact.  Despite his mental health issues, the NDRB could find no evidence in his health or service records that the Applicant was not responsible for his misconduct or that he should not be held accountable for his actions.  In the Applicant’s case, the Board could discern no impropriety or inequity in the Applicant’s discharge.  Based on a review of the evidence of record and evidence provided by the Applicant, the NDRB determined an upgrade to Honorable is not warranted and that the evidence of the Applicant’s mental condition was not sufficient to mitigate the misconduct which resulted in his discharge.

Issue 4:  (Decisional) ()    The Applicant also contends he and his wife now have a son, he works at a pharmaceutical company and wants to attend college to better himself.  The Applicant failed to provide any documentary evidence regarding post-service activities for the Board’s consideration—despite being encouraged to do so via NDRB correspondence.  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.  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.

The Board determined the Applicant’s statement regarding post-service conduct without documentation to support the same, was not sufficient to form a basis of relief.  On page 4, Item 8, in the instructions for completion of DD Form 293, the Applicant is notified to submit evidence “which substantiate or relate directly to your issues in Item 6” (Issues: Why an upgrade or change is requested and justification for the request).  Additionally, upon receipt of the Applicant’s DD Form 293, the NDRB mails an acceptance letter that includes the Information Concerning Review Procedures, which discusses the submission of additional documents in paragraph 3, Submission of Evidence, and in the last section on page 4, Information Pertaining to a Review Based Upon Post-Service Conduct.  However, even if the Applicant could have produced additional evidence to support a review based on his post-service conduct, the Applicant should be aware that post-service conduct alone does not guarantee an upgrade.  
 
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 Automatic Upgrades. 

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.

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