ex-OSSR, USN

Current Discharge and Applicant’s Request

Application Received:  20080506
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) 19961022 - 19970818  		Active:   19971229 - 20001026  HON

Period of Service Under Review:
Date of Enlistment:  20001027	   Period of Enlistment:   Years   Extension	Date of Discharge:  20041208
Length of Service:  Years     Months   10 Days   Education Level:  	  Age at Enlistment:  	    AFQT:  31
Highest Rank/Rate:  OS2	Evaluation Marks:  Performance:  1.8 (5)	Behavior:  2.0 (5)	 OTA:  2.23
Awards and Decorations (per DD 214):  NUCR BATTLE “E” NDSM AFEM SSDR LOC

Period of CONF:  Pre-trial 20030730-20030908

NJPs:  
           20020531:  Article 134 (Obtaining services under false pretenses)
               Awarded:       Suspended:     

20020815:  Article 86 (Absence without leave)
                   Article 87 (Missing movement)
                   Article 92 (Failure to obey order/regulation) 
               Awarded:  Vacated punishment from CO’s NJP on 20020531 (RIR, FOP)    
               Suspended: 

SPCM:	
           20030908:  Article 86 (UA), 20030602-20030624 (22 days) 
                                                         20030627-20030725 (29 days)
	     Article 112a (Wrongful use of marijuana) on 20030423, 20030625 and 20030725	
                Sentence:  RIR TO E-1 CONF FOR 90 DAYS BCD

Retention Warnings:  
           20020815:  For violation UCMJ Article 86 (Absence without leave), UCMJ Article 87 (Missing movement) and UCMJ     
                              Article 92 (Failure to obey). 

Medical Records:
           20010404:  Abbreviated LIMDU Board: Diagnosis –PTSD.  Limitations – retain near place of treatment;    
                              not to deploy.

           20010424:  Psychiatric Clinic: For evaluation of symptoms stemming from experience on USS COLE 

           20001012:  Anxiety, loss of sleep, nightmares, flashbacks, avoidance, hyper vigilance.   Pt assigned to    
                              another ship with frequent reminders of traumatic event.  Impression:  PTSD.  Begin 8 month LIMDU.  

           20011115:  Found Fit for duty.

Medical Records (cont):

  	20020517:  Inpatient Medical Board: For evaluation of ongoing symptoms of PTSD, intense anxiety, nightmares, and                          
                                  flashback.   No prior psychiatric history.  Diagnosis: PTSD resulting from explosion on ship,      
                                  considered disabling.  Recommend resume medication and support therapy; not fit for full duty and not   
                                  expected to improve with continued treatment.

               20030109:	Progress note of outpatient psychiatrist: For evaluation at request of command for suitability for sea duty.  Currently assigned to the USS Laboon for one week; his old ship was decommissioned; the patient has expressed his concerns to his command that he is worried about the possibility of the upcoming deployment and does not think that he will be able to tolerate it. Pt symptoms (of PTSD) return during periods of short deployments (2-3 days and one 3 weeks).  Pt avoided mess decks and stored food in his locker, persistent insomnia, flashbacks during fire drills, and vivid olfactory hallucinations.  Diagnosis – PTSD.  Plan- Fit for full duty but unsuitable for sea duty.

Types of Documents Submitted/reviewed

Related to Military Service:	
                                         DD 214:  	 Service/Medical Record:  		  Other Records:   

				- Record of Trial dated 8 September 2003

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 (Describe):  

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 8, effective  9 September 2004 until Present, Article 5815-010, EXECUTING A DISHONORABLE OR BAD CONDUCT DISCHARGE.

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.

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

Applicant’s Issues

1.  Seeking medical benefits.  
2.  Unfair treatment – court-martialed and given BCD.

Decision

Date:  20081016          	Location:  Washington D.C.	Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  COURT-MARTIAL.

Discussion

:  In regard to a request to receive medical benefits post service, this is either  which the Board cannot form the basis of relief for the Applicant, or  the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum, specifically the paragraph concerning , regarding for additional information regarding. 

:  ()  . The Applicant is requesting clemency based on alleged unfair treatment he received subsequent to receiving a court martial and separated with a “Bad Conduct Discharge” after being diagnosed with Post Traumatic Stress Disorder (PTSD).  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 contends he was onboard the USS COLE when it was bombed in Yemen, resulting in the death of 17 shipmates, including his leading petty officer (LPO); he assisted with the stabilizing of wounds and placement of shipmates in emergency protection gear.  The Applicant submitted statements from family members, friend of 7 years, and medical records pertaining to his diagnosis of PTSD.  

In response to the Applicant’s issue, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts.  With respect to a discharge adjudged by a court-martial case, 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.  After a thorough review of the Applicant’s medical and service record, issues submitted, personal statement, and character references, the Board determined clemency was warranted and the sentence awarded the Applicant at his court-martial was inequitableir in light of the mitigating circumstances that existed at the time of his discharge.

The Applicant contends he was diagnosed with kidney failure after being involuntarily discharged from the Navy.  He states this was not brought to his attention while on active duty and now he is seeking medical benefits. The Applicant did not submit any post service medical records to support his allegations of kidney failure.  Additionally, the Board reviewed the military medical records, which appeared to be incomplete, and did not find any documentation of abnormal kidney test or complaints of kidney problems.  However, the evidence of record reflects that on 7 January 1998, the Applicant completed a Dental Health Questionnaire and checked “no” next to the block –‘have you ever had or have now…. kidney problems’.   The Board determined this claim, as presented, was without support.

With respect to the events leading to the Applicant’s discharge the Board considered the following to be mitigating factors:  1) The evidence contained in the record of trial, pages 61 - 64, wherein the Applicant’s LPO testified that prior to the “COLE’s attack” the Applicant was a 4.0 sailor who was on time, respectful, did not require supervision and did what he was told.  After the attack he was a different person who reported waking up in the middle of the night screaming, experiencing cold sweats, kicking and acting crazy; 2) The Applicant had successfully completed his first enlistment, received an honorable discharge on 26 October 2000, and reenlisted shortly after the attack on the USS COLE; and 3) The copious amounts of medical 

documentation confirming the diagnosis of PTSD within 6 months of the USS COLE attack and the medical diagnosis of the Applicant’s unsuitability for further deployments or ship assignments.  The Board noted the Applicant was assigned to three different ship’s, subsequent to being diagnosed as having PTSD and not suitable for sea duty, as recorded in the NAVPERS 1070/605 History of Assignments.  The progress note of 9 January 2003, from an outpatient psychiatrist, indicates the Applicant was referred for an evaluation at the request of the command after being on aboard the USS LABOON for a week; the Applicant expressed concerns of not being able to tolerate the upcoming deployment.  Per the medical record, PTSD symptoms would return during periods of deployment, yet the History of Assignment reflects the Applicant was not transferred off the ship until his court martial on 8 September 2003, which was 8 months after he had expressed concerns about his ability to tolerate a deployment.  

Other evidence considered by the Board was the written opinion of the Naval Discharge Review Board’s senior medical advisor dated 15 October 2008, wherein he concluded the misconduct was likely the product of the inability of the administrative structure to respond appropriately to repeated evidence of his unsuitability for deployment and recognition of the potential indirect and direct behavioral sequella associated with PTSD which consequently deprived the Applicant of the best possible psychiatric evaluation and defense at the special court martial.  However, he also states the Applicant was probably responsible for his behavior.  

After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety in the discharge action but did discern an inequity in the characterization of the Applicant’s service based on the continued assignment of the Applicant to ship duty even against medical opinion.  The Board voted unanimously to award clemency in this case and voted 4:1 to upgrade the character of the discharge to “General (Under Honorable Conditions).    While the Applicant may have been influenced by the attack on the USS COLE and suffered PTSD as a result, there was not conclusive evidence in the record to indicate he was not responsible for his actions, behavior, or misconduct; as a result of this, the Board determined granting the requested upgrade to “Honorable” would be inappropriate.  

Dissenting Opinion:

This board member opines that the Applicant’s misconduct is a direct result of the command’s failure to remove him from an environment that proved to be detrimental to his mental, physical and economic well being.  He was a victim who survived a bombing of the USS COLE, and experienced the loss/death of 17 shipmates, (including his LPO); he assisted with emergency efforts to sustain life and the ship.  Despite a documented diagnosis of PTSD and unsuitability for deployment, he was subsequently reassigned to three different ships where he could, and did, experience flashbacks and nightmares of one of the cruelest attacks a Sailor could imagine.  What is even more disturbing is the command’s disregard for evidence contained in the Inpatient Medical Board of 05172002, which noted the Applicant was experiencing ongoing symptoms of PTSD, intense anxiety, nightmares, and a flashback; he had no prior psychiatric history.  The Board determined the Applicant was not fit for full duty and not expected to improve with continued treatment.   Three months later the Applicant was taken to NJP for unauthorized absence, missing ship’s movement and failure to obey an order or regulation.   The continued disregard for the mental well being of one of its’ own Sailors thus placed him in an environment resulting in further deterioration of his already fragile mental state.  Consequently, this led to further misconduct and discharge of the Applicant with a federal conviction. Based on the foregoing, I am opined that a grave inequity existed and the Board should place this victim in the position that he was in prior to the bombing of the USS COLE.  The record reflects the Applicant had completed an enlistment with an honorable discharge and reenlisted shortly after the incident.  Therefore, I recommend that he receive an honorable discharge.

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, 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