ex-EM2, USN

Current Discharge and Applicant’s Request

Application Received: 20100128
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)	20010413 - 20010919 (ADSEP)	Active:	
	USNR (DEP)	20020323 - 20020508 (COG)

Period of Service Under Review:
Date of Current Enlistment:  20020509	Age at Enlistment:  
Period of Enlistment:   Years  32 MONTHS Extension
Date of Discharge:  20070601	Highest Rank/Rate:  EM2
Length of Service:   Year(s)     Month(s)   23 Day(s)
Education Level:  	AFQT:  95
Evaluation Marks:	Performance:  3.7 (6)	Behavior:  3.0 (6)	OTA:  3.38 (6)

Awards and Decorations (per DD 214):	Pistol       

Periods of UA/CONF:  

NJP:  	SCM:  	SPCM:  	CC:  

Retention Warning Counseling:  
- 20040127:	For failing the Physical Readiness Test (PRT) portion of the Physical Fitness Assessment (PFA).

Administrative Corrections to the Applicant’s DD 214

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

	 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read:  “NAVY PISTOL MARKSMAN GOOD CONDUCT MEDAL NATIONAL DEFENSE SERVICE MEDAL GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL GLOBAL WAR ON TERRORISM SERVICE MEDAL HUMANITARIAN SERVICE MEDAL SEA SERVICE DEPLOYMENT RIBBON LETTER OF 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:		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 11 June 2008, Article 1910-142, SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

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, Articles 91 and 128.

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

Applicant’s Issues

1.	Applicant seeks a discharge upgrade to obtain G.I. Bill benefits.
2.	Applicant seeks a more favorable RE code.
3.	Applicant contends the Separation Authority used for his discharge was improper and the character of service awarded was inequitable.
4.	Applicant contends his command rushed him through Captain’s Mast, without opportunity to consult counsel, for an assault allegation that he contends should have been handled at court-martial if it was indeed a serious offense.
5.	Applicant contends that if he was administratively separated when first recommended by his physician, he would have received an Honorable discharge.
6.	Applicant contends PTSD effectively disabled him while in service and therefore mitigates the misconduct for which he was separated.
7.	Applicant contends a Department of Veterans Affairs investigation of traumatic brain injury (TBI) supports his claim that injuries he sustained during flight deck helicopter operations were not properly investigated. 

Decision

Date:  20110526		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.  Using available evidence, the Board 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’s record of service included  NAVPERS 1070/613 (Page 13) retention warning for failing the physical readiness test (27 Jan 04).  Evidence also reflects the Applicant was referred to Captain’s Mast (NJP) for an assault upon his Chief Petty Officer (CPO), but the court memorandum that details the charge(s), finding(s), and punishment (if awarded) was not found in the record.  There was no record of trial by courts-martial.  Based on the offense(s) committed by the Applicant,  command administratively processed  for separation.  The NDRB did not have the Applicant’s administrative separation package to determine whether he exercised or waived his rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review.

:  (Nondecisional) The Applicant seeks a discharge upgrade to obtain G.I. Bill benefits.  The U.S. Department of Veterans Affairs determines eligibility for post-service benefits, not the NDRB.  The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities as regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

:  (Nondecisional) The Applicant seeks a more favorable 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 can make changes to reenlistment codes.

:  (Decisional) ()  .  The Applicant contends the Separation Authority used for his discharge was improper and the character of service awarded was inequitable.  The Applicant was separated under Naval Military Personnel Manual (MILPERSMAN) section 1910-142, Commission of a Serious Offense.  Though the records do not contain the Applicant’s administrative separation package documentation, evidence within the record shows that on or about 14 May 07, the Applicant was notified by his CPO that he was to attend a Disciplinary Review Board (DRB) proceeding.  Upon verbal notification, the record indicated the Applicant “lost control,” argued with his CPO, allegedly 

grabbed the CPO and shook him, and at some point pulled out a knife and threatened to cut himself in the hand.  After being talked down, the Applicant was escorted to medical where he was then referred to the Naval Hospital Portsmouth Mental Health Department for admission and mental health evaluation due to a suicide gesture.  The Applicant was evaluated and then released back to his command on 17 May 07.  In the physician’s report, it was noted the Applicant had a history of “temper tantrums” when confronted in his work section.  The Applicant was diagnosed with Personality Disorder Not Otherwise Specified with Borderline and Immature Traits (as opposed to an Axis I diagnosis...e.g. PTSD, as the Applicant contends), though his family history did reveal a significant history of psychiatric disorders to include bi-polar and schizophrenia.  The Applicant was “found fit for duty, with no psychiatric disease or condition, but with a noted long-standing disorder of character and behavior which made him likely to become or remain a disciplinary or other problem during service and repeatedly interfere with him serving successfully in the Navy in any capacity.”  The physician recommended administrative separation based on “the documented interference of duties and the Applicant’s inability to adjust to the demands of the Navy.”

Though the service records are incomplete, there is evidence that the Applicant was referred to Captain’s Mast in May 07 and was found guilty of assault upon his Chief Petty Officer (specifications of assault charge NFIR) that occurred on or about 14 May 07.  This is corroborated by the Separation Authority (MILPERSMAN 1910-142), Separation Code (HKQ), and Narrative Reason (Misconduct - Commission of a Serious Offense) listed on the Applicant’s DD Form 214.  The Applicant was administratively separated from the Navy on 1 Jun 07 with a General (Under Honorable Conditions) discharge due to Misconduct (Serious Offense).  When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service as under Honorable conditions.  A General (Under Honorable Conditions) characterization of service is appropriate if the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance outweigh positive aspects of the member’s military record.  The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant failed to meet the requirements of conduct expected of all Sailors, especially considering his grade and length of service, and falls short of what is required for an upgrade to Honorable.  However, after a detailed examination and careful consideration of all the available evidence, the Board determined that partial mitigation was warranted based on the documentation relating to his persistent mental health issues and the circumstances surrounding the Applicant’s misconduct.  As a result, the NDRB voted, 3-2, to change the Narrative Reason for Separation to Secretarial Authority and voted, 3-2, to keep the Characterization of Service at General (Under Honorable Conditions).  Full relief to Honorable was not granted due to the seriousness of the misconduct.

Issue 4:  (Decisional) ()  .  The Applicant contends his command rushed him through Captain’s Mast, without opportunity to consult counsel, for an assault allegation that he contends should have been handled at court-martial if it was indeed a serious offense.  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.  Though the Applicant’s service records are incomplete, the available evidence suggests that the Applicant’s work performance and standing within the command were good.  During his tour aboard the USS Nashville (Apr 05 to May 07), the Applicant’s Evaluation and Counseling Records documenting his performance indicated average markings of Performance (4.0), Behavior (3.5), and Overall Trait Average (3.71) over three reports, which covered all but the last two months of his entire tour of duty (last evaluation signed 29 Mar 07).  Based on his record of performance, the fact that the Applicant was retained and remained within the command for months after his numerous behavioral incidents, and the fact that the command did not refer charges on him for trial by court-martial, the Board determined the Applicant’s assertion to be without merit.  Moreover, the fact that the command did not refer charges for court-martial is not relevant.  Violations of the UCMJ that are considered “commission of a serious offense” do not have to be referred to and adjudicated at court-martial.  The decision on whether to refer charges for trial by courts-martial, to adjudicate offenses at commanding officer’s nonjudicial punishment (NJP), or to initiate administrative separation proceedings based on a preponderance of the evidence that commission of a serious offense occurred rests solely with the courts-martial convening authority.  Based on all the facts and circumstances surrounding the allegation(s) against the Applicant, his command chose not to refer him to trial by courts-martial, which could have resulted in confinement for up to one year and a Bad Conduct or Dishonorable Discharge (UCMJ Articles 91 and 128 are considered serious offenses).  Instead, his command opted to adjudicate the matter at NJP, where the maximum punishment could include no more than 45 days restriction and extra duty, 1/2 of one month’s forfeiture of pay for two months, reduction in rank (one grade to E-4), and correctional custody of not more than 30 days.  The NDRB did not have the Court Memorandum of Record or other related documents available for review that typically provide details of the UCMJ violation charge(s), the Applicant’s election to consult with qualified counsel and decision to accept nonjudicial punishment or demand trial by courts-martial, the commanding officer’s NJP finding(s), and the punishment awarded (if applicable).  Accordingly, without substantial or credible evidence to rebut or question the presumption of regularity during pre-NJP notification counseling, the NDRB could not address the Applicant’s contention that he was not afforded an opportunity to consult with counsel prior to accepting NJP.  After consideration of all the available evidence, the Board found this issue to be without merit and did not provide a basis for which relief could be granted.  Relief denied.

Issue 5:  (Decisional) ()  .  The Applicant contends that if he was administratively separated when first recommended by his physician, he would have received an Honorable discharge.  After the incident on or about 14 May 07 with his CPO, the Applicant was sent to Naval Hospital Portsmouth, where he was evaluated and then released back to his command on 17 May 07.  The Applicant was diagnosed with Personality Disorder Not Otherwise Specified with Borderline and Immature Traits, and the physician annotated that the Applicant was “found fit for duty, with no psychiatric disease or condition, but with a noted long-standing disorder of character and behavior which made him likely to become or remain a disciplinary or other problem during service and repeatedly interfere with him serving successfully in the Navy in any capacity.”  The physician recommended administrative separation based on “the documented interference of duties and the Applicant’s inability to adjust to the demands of the Navy.”  The Applicant was administratively discharged from the Navy less than 2 weeks later on 1 Jun 2007.  Accordingly, the NDRB found the Applicant’s contention that had he been separated from the Navy when recommended by the physician (due to personality disorder in May 07), he would not have been separated for Misconduct (Commission of a Serious Offense) nor received a General (Under Honorable Conditions) discharge to be groundless.  At no time was the Applicant found not to be responsible for his actions or that he should not be held accountable for his actions.  Furthermore, the implication that the length of time it took the Navy to effect the Applicant’s administrative separation (after recommendation from his physician) allowed the circumstances to occur that resulted in his separation for commission of a serious offense misconduct is groundless.  After consideration of the available evidence, the NDRB determined this issue to be without merit and did not provide a basis for which relief could be granted.  

Issue 6:  (Decisional) ()  .  The Applicant contends PTSD effectively disabled him while in service and therefore mitigates the misconduct for which he was separated.  There is documentation in the record that the Applicant received commendation for his participation in fighting a Class Alpha fire that occurred in the ship’s laundry during deployment and the post-fire repairs made to electrical and ventilation systems while underway.  However, there is no evidence in the medical or service records to support the contention that the Applicant was diagnosed with PTSD or experienced symptoms of post-traumatic stress.  Moreover, service record documentation did reveal personality or emotional related problems as early as May 2004 (a suicide gesture) while undergoing training at Navy Nuclear Power Training Unit, Charleston, SC.  In November 2006, the Applicant experienced an emotional breakdown at his watchstation after a verbal altercation with other watchstanders regarding a letter he had written to the ship’s commanding officer in which he related his issue with his perceived unfair distribution of watch schedules and duty responsibilities within his division.  In Feb 2007, another incident was noted in which the Applicant lost control of his emotions as a result of workcenter stressors and problems with his commute to work that morning that made him report late to work (temporarily misplaced his keys, commuter train delay).

After extensive review of the Applicant’s records, the Board could find no evidence to support the contention that the Applicant was unfit for duty and/or not responsible for his actions.  Though he may have experienced a combination of stressors to include the extensive nuclear power training program, chronic headaches and a recurring ankle injury, work center and interpersonal stress aboard ship, and the Class A fire in the ship’s laundry, the Board could not find a basis to support the contention that the Applicant was mentally disabled or unable to reason and chose right from wrong at the time of his misconduct and subsequent separation from service.  The NDRB recognizes that serving in the U.S. Navy is challenging.  However, all members of the Naval Services are expected to uphold the high standards of conduct as evidenced in our Core Values of Honor, Courage, and Commitment, regardless of the environment or mission in which assigned.  After thorough analysis of the records, the Board determined this issue did not provide a basis for which relief could be granted.  Relief denied.

Issue 7:  (Decisional) ()  .  The Applicant contends a Department of Veterans Affairs investigation of TBI supports his claim that injuries he sustained during flight deck helicopter operations were not properly investigated.  The NDRB is not an investigative body and any reports of impropriety with relation to mishaps or duty related injury should be reported to the applicable Inspector General Office.  The NDRB examined the Applicant’s medical records to determine whether he may have suffered head trauma or injury that may have led to TBI.  There was no evidence to support the contention that the Applicant received significant head injury as a result of being hit in the head by a turning helicopter blade.  On the Applicant’s separation physical (dated 30 May 2007), he did not annotate any issues concerning head trauma or concussion.  Additionally, on item 14c (Currently in good health?) he answered “‘YES”; on item 15a (Have you had or do you have now a head injury or memory loss, or amnesia?) he answered “NO”; and on item 23 (Have you ever had any illness or injury other than those already noted?) he answered “NO”.  There was a 14 Dec 2005 medical exam in the medical record for the Applicant’s ongoing headache problem that lists an “Intentional Injury By Other Person Using a Blunt Object,” which indicates the Applicant at one time may have received a head injury as the result of an intentional act by someone during a fight or altercation.  However, no supporting documentation or information was found in the record.

Per the OPNAVINST 3750.6R, Naval Aviation Safety Program, an aviation ground incident resulting in injury is only reported as a mishap when any one of the following criteria is met: fatality, permanent disability, permanent partial disability, loss of five or more workdays, or $50,000 or more in property damage.  If none of the criteria are met, then the incident may be reported as a Hazard Report.  Per JAGINST 5800.7E, when an aircraft mishap results in death, serious injury, extensive damage to government property or the possibility of a claim for, or against, the government exists, a JAGMAN investigation shall be ordered to determine the cause and responsibility for the mishap, nature and extent of any injuries, description of all damage to property, and any attendant circumstances.  Since the Applicant’s service and medical records do not reveal any evidence of an aircraft mishap, mishap-related investigations, or post-mishap mandatory medical examination, the Board found that the evidence did not support the Applicant’s contention that he suffered TBI as a result of injury from turning helicopter rotor blades.  However, the NDRB could also not completely rule out the possibility that some type of minor injury could have been sustained while participating in flight deck operations.  Lack of evidence notwithstanding, the NDRB, after considering all the facts and documentary evidence available, determined this issue did not provide a basis for which relief could be granted.  Relief denied. 

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  and medical record entries, and documentation sent by the Applicant, the Board found the discharge was proper and equitable at the time of discharge.  However, based on all the available evidence, the board found that partial mitigation was warranted in the Applicant’s misconduct based on the documentation related to his persistent mental health issues.  Therefore, the awarded characterization of service shall  , but the narrative reason for separation shall change to .  The Applicant remains eligible for and is encouraged to request 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), 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