ex-ABFAN, USN

Current Discharge and Applicant’s Request

Application Received: 20151007
Characterization of Service Received:   
Narrative Reason for Discharge:   
Reenlistment Code:  
Authority for Discharge:   MILPERSMAN 

Applicant’s Request:	Characterization change to:	
	Narrative Reason change to:	

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	20020622 - 20030318  	Active:	

Period of Service Under Review:

Date of Current Enlistment:  20030319	Age at Enlistment:  
Period of Enlistment:   Years   Extension 
Date of Discharge:  20051205	Highest Rank/Rate:  ABFAN
Length of Service:   Year(s)     Month(s)   17 Day(s)
Education Level:  	AFQT:  35
Evaluation Marks:  NFIR

Awards and Decorations (per DD 214):	 

Periods of UA/CONF:  

NJP:  

- 20050323:	Article 
	Article 
	Awarded:     Suspended:  

- 20051109:	Article 134 (General article; disorderly conduct, drunkenness)
	Awarded:     Suspended:  

SCM:  

SPCM:  

CC:  

Retention Warning Counseling:  

- 20050323:	For the following deficiencies in your performance and/or conduct are identified:  CO’s NJP of 20050323, for violation of the UCMJ, Article 128 – Assault, simple; to wit:  placing his left arm in front of him to stop the CDO from passing, Article 134 – Consuming alcohol under the age of 21.

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:		Rehabilitation/Treatment:		Criminal Records:	
	Personal Documentation:		Community Service:		References:	
	Department of VA letter:		Other Documentation:	
		Additional Statements:
	From Applicant:		From/To Representation:		From/To Congress member:	

Types of Witnesses Who Testified

	Expert:		Character:	

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until 19 May 2008, 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 IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications.

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

Applicant’s Issues

1.	The Applicant seeks enhanced employment opportunities and service benefits.
2.	The Applicant requests an upgrade because he started drinking to numb the pain of being bullied because of his short arms; the Applicant contends that this caused him to consider killing himself while in-service.
3.	The Applicant contends his discharge characterization is inequitable because he was never provided treatment for his drinking.
4.	The Applicant contends his discharge characterization is inequitable because he was charged with underage drinking when he was not underage.
5.	The Applicant contends his discharge characterization is inequitable because other sailors with similar misconduct were punished less harshly for what the Applicant states were minor alcohol related incidents.
6.	The Applicant contends that his in-service performance as evidenced by his 4.0 evaluations, becoming a shellback, and his selection as the Sailor of the Day merits consideration for an upgrade.
7.	The Applicant contends youth and immaturity contributed to his misconduct.

Decision

Date:  20160208		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 Board did complete a thorough review of the circumstances that led to  discharge and the discharge process to ensure  discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included  NAVPERS 1070/613 (Page 13) warning and   for  of the Uniform Code of Military Justice (UCMJ): Article 128 (Assault, one specification) and Article 134 (General article, two specifications).  Based on the offense(s) committed by the Applicant,  command administratively processed  for separation.  When notified of administrative separation processing using the  procedure, the Applicant waived  rights to consult with a qualified counsel, submit a written statement, and request an administrative board.

As a result of the Applicant’s claim that he had suicidal ideations during his enlistment resulting from being bullied and alcohol consumption which impacted their discharge, and in accordance with U.S. Code, Title X, Section 1553 (e)(2), the Naval Discharge Review Board included a member who is a clinical psychologist or psychiatrist, or a physician with special training on mental health disorder.  The Applicant’s service medical records fail to document that the Applicant was diagnosed with a mental health disorder while serving in the armed forces or demonstrated or reported suicidal ideations.  Documentation contained within the Applicant’s Department of Veterans Affairs (VA) medical records includes documentation from a 3 September 2009 post-service emergency room visit that specifically annotated “No history of anxiety, bipolar, depression, suicidal ideation, suicide attempts, psychosis, hallucinations, homicidal ideation, violence toward others, schizophrenia.”

:  (Nondecisional) The Applicant seeks enhanced employment opportunities and service benefits.  The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities.  Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.  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.

:  (Decisional) () .  The Applicant requests an upgrade because he started drinking to numb the pain of being bullied because of his short arms.  The Applicant contends that this caused him to consider killing himself while in-service.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  The records received from the VA failed to document any request for evaluation, any diagnosis, or any findings of a mental health diagnosis or other mental health concerns relating to suicidal ideations or complaints of bullying.  Moreover, the Applicant did not provide any evidence of a diagnosis of the aforementioned items from any other private mental health treatment provider to document his claim.  The NDRB found no evidence in the record of any indications of, the Applicant being bullied or having suicidal ideations while in-service.  Furthermore, the Applicant’s record does not document any attempts to seek help for any mental health symptoms or reports of bullying while in service.  Lacking any evidence to support the Applicant’s claims, the NDRB is unable to establish this contention as a basis for mitigation or consideration as an extenuating circumstance.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  Relief denied.

:  (Decisional) () .  The Applicant contends his discharge characterization is inequitable because he was never provided treatment for his drinking.  Regulations require members who have an ongoing history of alcohol abuse to be medically screened for an alcohol problem.  If diagnosed as dependent on alcohol by competent medical authority, which does not include the commanding officer, appropriate treatment must be offered prior to separation.  The purpose of this treatment is not to rehabilitate a service member for further service but rather to provide treatment before separation.  The NDRB 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.  Other than the Applicant’s statement indicating he abused alcohol, he provided no evidence reflecting a history of alcohol abuse and his statement alone is not enough to refute the presumption of regularity.  In addition, the Board found no evidence of alcohol abuse or dependency in the Applicant’s service record.  Therefore, the Board concluded the command acted appropriately, equitably, and properly in processing the Applicant for separation.  Relief denied.

4:  (Decisional) () .  The Applicant contends his discharge characterization is inequitable because he was charged with underage drinking when he was not underage.  The record of evidence clearly shows the Applicant waived his rights to trial by court-martial and an administrative separation board.  If the Applicant felt he was mistakenly charged with a crime, it was his obligation to contest those charges at the time they were made.  During a trial or administrative separation board, he would have had the opportunity to mount a defense against the charges.  The Applicant’s claim that the date of his actual NJP was after his 21st birthday has no bearing on the date of the actual offense.  The Applicant submitted no evidence to support his contention; therefore, the NDRB must rely upon the presumption of regularity in the conduct of Government affairs.  Relief denied.

5:  (Decisional) () .  The Applicant contends his discharge characterization is inequitable because other sailors with similar misconduct were punished less harshly for what the Applicant states were minor alcohol related incidents.  While other members of his unit may have been charged with the same or similar offenses, each case must stand on its own merits.  The Commanding Officer is allowed to consider matters for extenuation and mitigation unique to each individual.  Therefore no two cases, no matter how similar, are guaranteed to receive the same punishment.

The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service.  Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy.  A preponderance of the evidence reviewed supports the conclusion that the Applicant both displayed a pattern of misconduct and committed a serious offense, that separation from the Naval Service was appropriate, and that an Under Other Than Honorable Conditions discharge was warranted.  Relief denied.

6:  (Decisional) () .  The Applicant contends that his in-service performance as evidenced by his 4.0 evaluations, becoming a shellback, and his selection as the Sailor of the Day merits consideration for an upgrade.  The Applicant was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation.  The characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation.  Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition.  Based on the Applicant’s record of service, the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service, and the awarded characterization of service was warranted.  Relief denied.

7:  (Decisional) () .  The Applicant contends youth and immaturity contributed to his misconduct.  The NDRB recognizes that many of our servicemembers are young at the time they enlist for service, however, most still manage to serve honorably.  While some members may be less mature than others, the NDRB does not view a member’s claim of immaturity to be a mitigating factor or a sufficient reason for misconduct.  The NDRB acknowledges that serving in the all-volunteer Armed Forces is challenging but reflects a commitment to our Nation; thus, service members deserve to be recognized upon completion of their service.  One of the ways in which our service members are recognized is through the determination of their characterization of service.  Most servicemembers, however, serve honorably and therefore earn their Honorable discharges.  In fairness to those Marines and Sailors who served honorably, Commanders and Separation Authorities are tasked to ensure that undeserving servicemembers receive no higher characterization than is due.  The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances.  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 remain UNDER OTHER THAN HONORABLE CONDITIONS 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 for additional information.

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 Disabled American 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 their opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490, or http://www.secnav.navy.mil/mra/bcnr/Pages/default.aspx 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:  Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code.  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