ex-AA, USN

Current Discharge and Applicant’s Request

Application Received: 20150917
Characterization of Service Received:  (corrected) GENERAL (UNDER HONORABLE CONDITIONS)
Narrative Reason for Discharge:  (corrected) MISCONDUCT
Reenlistment Code:  RE-4
Authority for Discharge:  (per DD 214) MILPERSMAN 1910-142 [COMMISSION OF A SERIOUS OFFENSE]

Applicant’s Request:	Characterization change to:	HONORABLE
	Narrative Reason change to:	NONE REQUESTED

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	20030711 - 20030710  COG	Active:	NONE

Period of Service Under Review:

Date of Current Enlistment:  20030711	Age at Enlistment:  26
Period of Enlistment:  4 Years  NO Extension 
Date of Discharge:  20050805	Highest Rank/Rate:  AN
Length of Service:  02 Year(s)   00  Month(s)   26 Day(s)
Education Level:  12	AFQT:  92
Evaluation Marks:	Performance:  2.5 (2)	Behavior:  2.5 (2)	OTA:  2.34

Awards and Decorations (per DD 214):	Pistol MM NDSM

Periods of UA/CONF:  NONE

NJP:  1

- 20041122:	Article 86 (Absence without leave; O/A 0730 20041104, SNM failed to report to his assigned place of duty until 1015 20041104.)
	Article 134 (General article; O/A 20041104, SNM was drunk and disorderly onboard Fallon NAS.  Disorderly conduct, drunkenness.)
	Awarded: RIR FOP RESTR  Suspended:  NONE

SCM:  NONE

SPCM:  NONE

CC:  3

- 20040319:	Offense:  Pled guilty to misdemeanor charges of Drunk Driving at Superior Court Hanford, CA
	Sentence:  Fine, restitution, DUI school, license restriction, and five days jail.

- 20040915:	Offense:  Public Intoxication and two counts of battery at Visalia Superior Court, CA.
	Sentence:  Fine and AA meetings.

- 20050411:	Offense:  Pled Nolo Contendre to misdemeanor charges of obstruct/resist/delay Peace Officer; trespass/occupy property; and vandalism at Superior Court Hanford, CA
	Sentence:  Fine and AA meetings.

Retention Warning Counseling:  1

- 20040323:	For conduct leading to a 20040319 plea of guilty to misdemeanor civil violation of drunk driving (over 0.08).

Administrative Corrections to the Applicant’s DD 214

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

	Block 24, Character of Service, should read: “GENERAL (UNDER HONORABLE CONDITIONS)”
	Block 28, Narrative Reason for Separation, should read: “MISCONDUCT”

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:		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:	

Pertinent Regulation/Law

A.  Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 1 September 2001 until Present.

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 contends that he was not given due process during separation because he was told his misconduct would be forgiven if he stayed out of trouble.
2.	The Applicant contends that if had been given alcohol rehabilitation treatment after the first incident then he would not have continued his misconduct.
3.	The Applicant contends that he was suffering from military sexual trauma from an event that happened during A school.

Decision

Date:  20150407	DOCUMENTARY REVIEW	Location:  Washington D.C.	Representation:  NONE

By a vote of 5-0 the Characterization shall remain GENERAL (UNDER HONORABLE CONDITIONS).
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT.

Discussion

As a result of the Applicant’s claim that temporary depression 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 record did not document that the Applicant was diagnosed with a mental health disorder while serving in the armed forces.

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 completed a thorough review of the circumstances that led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included one NAVPERS 1070/613 (Page 13) warning; one nonjudicial punishment (NJP) for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave) and Article 134 (General article); and three civil convictions.  Based on the offenses committed by the Applicant, his command administratively processed him for separation.  When notified of administrative separation processing using the notification procedure, the Applicant exercised his rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review. 

Issue 1:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends that he was not given due process during separation because he was told his misconduct would be forgiven if he stayed out of trouble.  On 15 May 2005, the Applicant was properly notified of the pending separation based on both a pattern of misconduct and commission of a serious offense.  The Applicant exercised his rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention the command treated him unfairly or denied him due process.  Relief denied.

Issue 2:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends that if he had been given alcohol rehabilitation treatment after the first incident then he would not have continued his misconduct.  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, 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 Applicant did receive in-patient rehabilitation treatment prior to separation.  It is only speculation to consider whether or not earlier treatment would have produced a different outcome.   The command could have administratively separated the Applicant following the first incident where he was found guilty of drinking and driving and sentenced to five days jail time, fine, license restriction, restitution,  and DUI school;  however, the command retained him giving him the opportunity to continue his military service.  Relief denied.

Issue 3:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends that he was suffering from military sexual trauma from an event that happened during “A” school.  The NDRB requested the Applicant’s medical treatment records, but the VA was unable to locate them.  Based on the information available on Armed Forces Health Longitudinal Technology Application (AHLTA), there was no report of a sexual trauma.  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 that a sexual trauma occurred, there is no evidence of record to document a sufficient mitigating factor to excuse the Applicant’s conduct or accountability concerning his actions.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and service record entries, and discharge process, the Board found the discharge was proper and equitable at the time of discharge.  Therefore, the awarded characterization of service shall remain GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain MISCONDUCT.  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his 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