ex-GM2, USN

Current Discharge and Applicant’s Request

Application Received: 20091124
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)	19940527 - 19940925  	Active:	  19940926 - 19990728  HON
		  19990729 - 20050508  HON	
Period of Service Under Review:
Date of Current Enlistment:  20050509	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20061204	Highest Rank/Rate:  GM1
Length of Service:   Year(s)     Month(s)   25 Day(s)
Education Level:  	AFQT:  49
Evaluation Marks:	Performance:  1.0 (1)	Behavior:  1.0 (1)	OTA:  1.29

Awards and Decorations (per DD 214):	 (3)  (2)  

Periods of UA/CONF:  

NJP:  

- 20051206:	Article  (Failing to go or leave appointed place of duty) 
	Awarded:     Suspended:  

- 20060829:	Article  (Failure to obey order or regulation) 
	Awarded:    Suspended:  

SCM:  	SPCM:  	CC:  

Retention Warning Counseling:  

	- 20060130:	Exceeding height/weight and body fat limits.

Administrative Corrections to the Applicant’s DD 214

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

	  “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 940926 UNTIL 050508”
	
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.  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 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.  

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

Applicant’s Issues

1.	Nondecisional issues: the Applicant seeks a change to his reenlistment code and narrative reason for discharge as prescribed on his Form DD-214 by his chain of command in order to reenlist and/or better facilitate government/contractor employment opportunities.
  
2.	Decisional issues:  The Applicant contends that he was sent unfairly to Captain’s Mast (nonjudicial punishment) by the senior enlisted leadership of his ship and that his separation from the Naval Service was unjust.  The Applicant contends that undiagnosed Post-Traumatic Stress Disorder (PTSD) resulting from a ship engagement with Somali pirates was a mitigating and extenuating circumstance resulting in his misconduct and warranted consideration during his nonjudicial punishment.  

Decision

Date:  20110224	        	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 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.  In the Applicant’s request for discharge review, he identified two decisional issues for the NDRB’s action.  As such, the NDRB completed 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 enlisted in the Navy with a medical waiver for failure to meet the prescribed physical standards for service.  He enlisted as an E-3 due to affiliation and training with a Junior ROTC program and elected training in the Seaman Apprentice ship program.  The Applicant eventually selected rating as a Gunners Mate technician with the vertical launch missile systems.  The Applicant completed his first two enlistment periods with Honorable characterizations of service, but each period of enlistment is an independent obligation and characterization of service is determined for that specific period of enlistment.  The Applicant was on his third re-enlistment period when separated from the service.  
  
The Applicant’s current period of service under review reflects one NAVPERS 1070/613 retention-counseling warning for multiple physical fitness assessment failures; he was advised of possible discharge or administrative legal ramifications if he failed to take corrective action or had any other performance or conduct-related failings.  Additionally, the Applicant’s record of service included two  for the following  of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without Leave; specifically, failure to go to prescribed place of duty) and Article 92 (Failure to obey an order or regulation).  

Based on the offenses committed by the Applicant and the pattern of misconduct established while in his current enlistment, the command administratively processed  for discharge pursuant to Article 1910-140 of the Naval Military Personnel Manual (MILPERSMAN) - Misconduct (Pattern of Misconduct).  The NDRB was unable to review the Applicant’s administrative discharge package due to an incomplete service record and had to presume regularity in the conduct of governmental affairs, specifically, that the Applicant was accorded his rights as prescribed in the MILPERSMAN.  However, the Applicant’s DD Form 214 documents that he was discharged with an assigned separation code of HKA - Pattern of Misconduct, Board Waived - documenting that the Applicant elected to waive his right to seek a hearing before an administrative discharge board to present his case for retention and characterization of his service.      

:  (Nondecisional)  The Applicant seeks a change to his reenlistment code and an unspecified change to his narrative reason for discharge as prescribed by the Separation Authority on his DD Form 214 in order to reenlist and/or better facilitate government/contractor employment opportunities.  The NDRB has no authority to upgrade a discharge characterization of service or change a narrative reason for discharge for the sole purpose of enhancing reenlistment or employment opportunities.  Additionally, the NDRB has no jurisdiction or authority over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces and is not authorized to change a reenlistment code.  As the NDRB is not authorized to change the reentry code as requested, the Applicant should petition the Board for Correction of Naval Records (BCNR) using DD Form 149.  When requesting a change, the Applicant should provide as much documentation as possible regarding the justification for change.  The BCNR’s address is:  Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100.  Further information may be found online at http://www.donhq.navy.mil/bcnr/bcnr.htm.  

Additionally, a request for a waiver of an assigned RE-code may be submitted during the processing of a formal application for reenlistment through a recruiter; neither a less than fully honorable discharge, nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  There is no requirement, or law, which grants the changing of a discharge characterization of service or narrative reason for separation for the sole purpose of enhancing reenlistment or employment opportunities.  As such, these issues do not serve to provide a foundation upon which the NDRB can grant relief.

:  (Decisional) ()  .  The Applicant contends that he was sent unfairly to Captain’s Mast (nonjudicial punishment) by the senior enlisted leadership of his ship and that his separation from the Naval Service was unjust.  The Applicant contends that undiagnosed PTSD resulting from a ship engagement with Somali pirates was a mitigating and extenuating circumstance resulting in his misconduct and warranted consideration during his nonjudicial punishment.  

(Propriety) 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 a basis of impropriety if the Applicant’s discharge was improper or inconsistent with requirements established for the 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 did establish a pattern of misconduct in accordance with the MILPERSMAN, that he did violate a documented retention counseling warning, that separation from the Naval Service was appropriate, and that a General (Under Honorable Conditions) discharge was not improper.  The NDRB determined that the discharge action and the narrative reason for separation were proper.  As such, the NDRB determined there was no impropriety due to an error of fact, law, procedure, or discretion with the discharge.  Accordingly, relief based on propriety is denied.

(Equity)  The Applicant contends that his bout of diagnosed PTSD was mitigation for his misconduct and, as such, warrants consideration for an upgrade in his characterization of service.  The Applicant’s medical records reflect a provisional diagnosis of PTSD resulting from an engagement with a Somali pirate ship while deployed.  The Applicant was treated and provided a secondary evaluation that referred him to his home station for follow-on treatment.  Upon the return of his assigned ship from deployment, the Applicant was placed in a full-duty status and returned to his command.  
       
While the Applicant may feel that his provisional diagnosis of PTSD was the underlying cause of his misconduct, the Applicant’s record of service reflects misconduct preceding the PTSD diagnosis.  Furthermore, the diagnosis of PTSD and recommendations of the credentialed mental health care providers did not demonstrate that the Applicant was unfit for further service, that he was not responsible for his conduct, or that he should not be held accountable for his actions.  After a detailed review of the Applicant’s medical record, the NDRB determined that the interim diagnosis of PTSD was not a mitigating factor in the Applicant’s misconduct and determined that an upgrade to Honorable in this unique case would not be appropriate.    

(Equity) The Applicant contends that he was treated unfairly by his command.  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.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention the command treated him unfairly.  The Applicant’s service included one retention warning and two nonjudicial punishments for violation of Articles 86 and 92 of the UCMJ.  Violation of Article 92 of the UCMJ is considered a serious offense for which confinement and a punitive Bad Conduct Discharge is authorized, if adjudicated and awarded as part of a sentence by a special or general court-martial.  The Command did not pursue the punitive discharge option, but instead opted for the more lenient administrative separation process.  While in service, the Applicant had an opportunity to defend himself but chose instead to waive his right to an administrative board hearing.  Furthermore, the Applicant did not submit any evidence with his application to overcome the government’s presumption of regularity in the administrative discharge of the Applicant.   

Based on the seriousness of the offenses committed, coupled with the Applicant’s failure to maintain physical readiness standards, his formal retention counseling regarding his performance and conduct, and his previous honorable enlistments, the Command recommended separation with a General (Under Honorable Conditions) characterization of service at discharge.  The Separation Authority reviewed the evidence of record and the gravity of the charges and directed that the Applicant be separated pursuant to MILPERSMAN Article 1910-140 Misconduct (Pattern of Misconduct) and that he be separated with a General (Under Honorable Conditions) characterization of his service.

The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of conduct expected of all Sailors, especially one of his grade and length of service, and falls short of what is required for an upgrade in the characterization of his service.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no inequity in the characterization of the Applicant’s service at discharge.  The NDRB’s vote was unanimous that an upgrade is not appropriate and that relief is not warranted; therefore, the character of the discharge shall not change.  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   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 Post-Service Conduct.

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), 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.

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:  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