ex-ENS, USN

Current Discharge and Applicant’s Request

Application Received: 20080421
Characterization of Service Received:  
Narrative Reason for Discharge: 
Authority for Discharge:  BUPERS ORDER 1275

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

Summary of Service

Prior Service:
Inactive: USNR (DEP): NONE	Active:	

Period of Service Under Review:
Date of Enlistment:  19980411	Age at Enlistment:  
Period of Enlistment:  NA
Date of Discharge:  20050630	Highest Rank/Rate:  LT
Length of Service:   Year(s)     Month(s)   19 Day(s)
Education Level:  	AFQT:  NFIR    Fitness Reports:  

Awards and Decorations (per DD 214):	   

Periods of UA/CONF:     NJP:  

Administrative Corrections to the Applicant’s DD 214

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

	 Decorations, Medals, Badges should include “MERITORIOUS UNIT COMMENDATION”

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:  

Discharge Process 

20041101:  An Article 32 investigation was initiated to investigate the charges preferred against the Applicant.

20050113:  Applicant submitted a request for administrative separation in lieu of trial by court-martial.

20050202:  Applicant submitted a qualified resignation for the good of the Naval Service and to escape trial before a general 
                   court-martial.

20050207:  Commander, National Naval Medical Center, Bethesda, forwarded the Applicant’s request to the Secretary of the
                   Navy via the Commander, Navy Personnel Command, and recommended approval of the Applicant’s resignation
                   with an Under Other Than Honorable Conditions characterization and the recoupment of tuition costs.

20050425:  Commander, Naval Personnel Command, recommended to the Assistant Secretary of the Navy (Manpower and 
                   Reserve Affairs) that the  with characterization of service as Other 
                   Than Honorable, in lieu of trial by court-martial and total recoupment of $95, 953.00, his Health Professions 
                   Services Provider Scholarship.

20050502:  Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved Applicant’s discharge in lieu of trial by 
                   court-martial, with characterization of service as Under Other Than Honorable conditions.

20050630:  Applicant discharged this date.

Pertinent Regulation/Law

A.  Secretary of the Navy Instruction 1920.6B (ADMINISTRATIVE SEPARATION OF OFFICERS), effective 13 December 1999 until 14 December 2005, establishes policies, standards and procedures for the administrative separation of Navy and Marine Corps officers from the naval service in accordance with Title 10, United States Code and DoD Directive 1332.30 of 14 March 1997.

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 violations of the UCMJ, Articles 121 and 133.

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

Applicant’s Issues

1. Undiagnosed and untreated Traumatic Brain Injury (TBI) mitigates his misconduct.

Decision

Date:  20090402		Location:  Washington D.C.	Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  IN LIEU OF TRIAL BY COURT MARTIAL.

Discussion

:  ()  .  The Applicant contends his TBI should be considered as a major factor to mitigate his misconduct and if he had been properly diagnosed and treated promptly for a TBI, following a motor vehicle accident, his subsequent behavior would not have been so irrational.  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 record of service was marred by one arrest for shoplifting a personal computer valued at $449.99 from a Marine Corps Exchange (MCX).  The Applicant was charged but never taken to NJP for violations of the Uniform Code of Military Justice (UCMJ): Article 121 (Larceny and wrongful appropriation, stole a personal computer) and Article 133 (Conduct unbecoming an officer and a gentleman, wrongfully requested another officer to return a stolen computer for a refund to defraud the MCX).  These are considered serious offenses which could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentence by a special or general court martial.  The command did not refer the Applicant for a court-martial but opted instead to accept his request for a separation in lieu of a trial by court-martial.  

On 25 April 2004, the Applicant was involved in a severe motor vehicle accident where he received a head injury; however, he was able to drive himself to the Bethesda Naval Hospital emergency room for treatment.  The Applicant’s complete official military medical records were requested but unfortunately were not available for the NDRB’s review.  However, the Applicant’s petition, submitted through his attorney’s, contained copies of numerous official pages from his medical record to include: 1) Abbreviated Medical Record, DD Form 2770; 2) Medical Record History, Part 1, SF 504; 3) Medical History, Part 3, SF 505; 4) Medical History Physical Examination, SF 506; 5) Numerous documents for inidiviudal visits to the family practice clinic; 6) Radiologic Examination Reports from NMC Bethesda; and 7) Neuropsychological Evaluation Reports from Walter Reed Army Medical Center, Brain Injury Center.  According to the Applicant’s petition and selected medical diagnosis paperwork attached to the petition he was diagnosed with a “Closed Head Injury” but “received only cursory medical evaluation and treatment.”  Normally, a severe head trauma usually involves a careful and detailed neurological assessment, including mental status, X-rays, computerized axial tomography (CT) scans, electroencephalographs (EEGs) and magnetic resonance imaging scans (MRIs), to establish a baseline for further evaluation.  According to the Applicant’s petition none of these follow-on diagnostic tests were done immediately following the accident and the Applicant received a one-day light duty status.  On 30 April 2004, a CT scan was performed on the Applicant’s brain and it was evaluated to be normal.  On 15 June 2004, the Applicant was diagnosed with adjustment disorder with mixed disturbance of mood and conduct.  On 25 October 2004, six months after the accident, the Applicant received a full neuropsychological evaluation at the Walter Reed Army Medical Center which determined he “may be experiencing slight attention deficits and possibly some decrease in his speed and efficiency of information processing.  However, the deficits seen on testing were generally mild and do not seem to be affecting him in his academics.”  “…the patient is currently suffering from moderate depressive symptoms and has been experiencing these symptoms for over a year.”  On 02 December 2004, the Applicant was assessed by the Walter Reed Army Medical Center Neurology Department to have “chronic post-traumatic headaches with occasional migrainous features.”  It should be noted, the Applicant did have three concussions prior to the auto accident from playing football and skiing and he went to the emergency room as a result of one of these concussions.

On 14 June 2004, fifty days after the automobile accident, the Applicant was arrested for shoplifting.  In the Applicant’s petition, he states he purchased a computer from the MCX and took it to his room; he then returned to the MCX and took a second computer, but left the second computer in a shopping cart at the food court of MCX as he was on his bicycle and did not have a vehicle to carry both computers.  The NDRB notes this portion of the Applicant’s petition is very unclear as it leads one to believe on his return trip to the MCX he actually had removed two computers.  However, in the next paragraph of the petition it states the Applicant was arrested when he attempted to return the stolen computer.  The evidence of record, which 
included a recap of a closed circuit television video, shows the Applicant had purchased a computer on 10 June 2004 from a MCX, left the store, and then returned a few minutes later and took another computer and exited the store without paying for it.  On 14 June 2004, the Applicant and another naval officer were detained while trying to obtain a refund for the stolen computer.  (The other naval officer was later released after the police determined he did not know what was going on.)  The Applicant acknowledged his Article 31 rights, declined legal representation and admitted to taking the second computer without paying for it.  In all subsequent interviews, medical evaluations, and in his resignation letter, the Applicant admitted to the larceny.  

In a memorandum dated 10 January 2005, the Director of University Counseling Services, USUHS, wrote, the Applicant’s “extreme emotional turmoil and personality makeup that drove him to attempt to continue full expected duties during this time are felt to be overwhelming contributors to his actions at the [Marine Corps] post exchange.” Prior to the Applicant being arrested, he was clearly under severe stress as demonstrated by: (1) he was having marital problems and his wife had left him and his daughter; (2) his wife was transferring large amounts of savings from their bank account; (3) he was caring for his 7 year old daughter, (4) going through a custody battle with his wife; (5) his mother left her home, husband and job to move in with the Applicant to help care for his daughter; (6) he was in medical school (and doing quite well), (7)  was accused of cheating on an medical exam, (8)  required to periodically travel out of state for scheduled medical rotations; (9) was experiencing severe headaches and was only getting 2-4 hours of sleep at night; and (10) he was suffering from depression, seasonal allergies and chronic gastro-intestinal dysfunction.  

While the Applicant may believe his TBI was a factor in his misconduct, the record of evidence shows the TBI was mild. The NDRB determined the combination of severe stress, depression, and the TBI received from his 25 April 2004 automobile accident may have been contributing factors in the Applicant’s lapse of judgment involving his larceny, which can affect cognitive functioning.  However, the record does not reflect the Applicant was not responsible for his actions or should not be held accountable for his misconduct due to his injury.  The Applicant’s behavior at the time of his misconduct appears to be out of character for him but there is no evidence that he did not know the difference between right and wrong actions, since he claims he left the computer in a shopping cart after feeling guilty about taking it.  However, four days after leaving the computer in the shopping cart, he tried to return a computer for a refund and asked another officer to help him.  The NDRB is unclear where this returned computer came from if the Applicant left the second stolen computer in the shopping cart as he explained.  It is doubtful a computer would have been left unattended in a shopping cart outside the MCX for four days without either being taken by someone else or returned to the exchange.  Regardless of how the Applicant ended up with the computer, the fact remains he had possession of a stolen computer from the MCX, admitted to stealing a computer and he was caught attempting to return the computer to the exchange.  The NDRB is not aware of an association between TBI and premeditated larceny, and the Applicant did not provide any documentation to support this.

The Applicant has requested an upgrade in his discharge to “Honorable”.  For the edification of the Applicant, when the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under “Honorable” conditions.  A discharge “Under Other Than Honorable Conditions” is warranted when an officer engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of officers of the naval service.  The Board determined the Applicant’s conduct, which forms the primary basis for determining the character of his service, reflected a significant departure from the conduct expected of an officer and the awarded characterization was appropriate; an upgrade would be inappropriate.

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   

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