ex-SO2, USN

Current Discharge and Applicant’s Request

Application Received: 20110708
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)	19961126 - 19970303  	Active:	 19970304 - 20010830 HON
		 20010831 - 20040829 HON
		
Period of Service Under Review:
Date of Current Enlistment:  20040830	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20090206	Highest Rank/Rate:  SO1
Length of Service:   Year(s)     Month(s)   07 Day(s)
Education Level:  	AFQT:  52
Evaluation Marks:	Performance:  3.7 (4)	Behavior:  3.2 (4)	OTA:  3.39

Awards and Decorations (per DD 214):	Rifle  Pistol   (w/Combat Valor)         

Periods of UA/CONF:  

NJP:  
- 20080611:	Article  (Insubordinate conduct toward warrant officer, non-commissioned officer, or petty officer)
	Article  (Failure to obey order or regulation)
	Article 112 (Drunk on duty) 
	Awarded: (to E-5) (60 days)    Suspended:  

SCM:  		SPCM:  		CC:  

Retention Warning Counseling:  

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: “RIFLE EXPERT PISTOL EXPERT NAVY MARINE CORPS COMMENDATION MEDAL (W/ COMBAT VALOR) COMBAT ACTION RIBBON ARMED FORCES EXPEDITIONARY MEDAL(2) IRAQ CAMPAIGN MEDAL SEA SERVICE DEPLOYMENT RIBBON(3) NATIONAL DEFENSE SERVICE MEDAL GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL  RIBBON GLOBAL WAR ON TERRORISM SERVICE MEDAL COAST GUARD MERITORIOUS UNIT COMMENDATION GOOD CONDUCT MEDAL FLAG LETTER OF COMMENDATION ENLISTED SURFACE WARFARE SPECIALIST ENLISTED AVIATION WARFARE SPECIALIST”

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 23, effective 12 June 2008 until 9 November 2009, 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, 92, and 112. 

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

Applicant’s Issues

1.	Applicant contends Post-Traumatic Stress Disorder (PTSD)/Traumatic Brain Injury (TBI) mitigates the misconduct for which he was separated. 
2.	Applicant contends his post-service achievements warrant consideration for a discharge upgrade. 

Decision

Date:  20120308		Location:  Washington D.C.	Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  .

Discussion

As a result of the Applicant’s diagnosis of PTSD, in accordance with U.S. Code, Title X, Section 1553 (d)(1), the Naval Discharge Review Board included a member who is a physician, clinical psychologist, or psychiatrist.  In accordance with section 1553 (d)(2), the service secretary expedited a final decision and accorded the case sufficient priority to achieve an expedited resolution.

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 Applicant identified two decisional issues for the Board’s consideration.  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 did reflect  nonjudicial punishment (NJP) for  of the Uniform Code of Military Justice (UCMJ): Article 91 (Insubordinate conduct toward a Chief Petty Officer, failed to present himself in proper uniform or with customary military bearing while being counseled by a SOC/E-7, 11 Jun 08), Article 92 (Failure to obey an order or regulation, 4 specifications: violated USCENTCOM General Order 1B between 13 Apr-11 Jun 08 by introducing alcohol, possessing alcohol, and consuming alcohol in theater; and failed to participate in a combat mission as an assaulter due to intoxication, 11 Jun 08), and Article 112 (Drunk on duty, Al Qaim Iraq, 11 Jun 08).  Based on the alcohol related offenses committed by the Applicant, he was returned early from combat operations in Iraq and his command subsequently administratively processed him 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 an administrative separation board (although the separation code GKQ listed on his DD Form 214 indicates the Applicant received an administrative separation board hearing).  After return from deployment, the Applicant received substance abuse screening and a mental health evaluation.  He was diagnosed as Alcohol Dependent and with an Adjustment Disorder, and subsequently referred for Substance Abuse Rehabilitation Program (SARP) treatment.  After completion of Level III in-patient alcohol rehabilitation treatment (Point Loma SARP) in Sep 08, the Applicant was separated from the Navy on 4 Feb 09 with an Under Other Than Honorable Conditions discharge due to Misconduct (Serious Offense).  

:  (Decisional) ()  .  The Applicant contends PTSD/TBI mitigates the misconduct for which he was separated.  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. The NDRB found no medical diagnosis in the record to support the Applicant’s claim, however, the Applicant did produce significant medical documentation of PTSD and TBI diagnoses from competent medical authorities in support of his claim.  After review of all the available evidence, to include documentation submitted on behalf of the Applicant, the Board found that the Applicant was responsible for his actions and that PTSD and TBI did not mitigate the misconduct for which he was separated.  Accordingly, the NDRB determined the Applicant’s discharge was proper and equitable per the applicable orders and directives in effect at the time of his separation, and this issue did not provide a basis for which relief could be granted, particularly when taking into account the serious nature of the misconduct.  Relief denied.

The U.S. Department of Veterans Affairs (VA) has announced special access to combat veterans discharged under other than dishonorable conditions.  The VA determines the eligibility for enrollment independent of the Applicant’s characterization of service as determined by the Navy.  Effective 28 January 2008, combat veterans discharged from active duty on or after 28 January 2003 are eligible for combat-veteran enhanced eligibility and enrollment placement into Priority Group 6 (unless eligible for higher enrollment Priority Group placement) for five years after discharge.  The Applicant, as a combat veteran, is encouraged to contact the VA for more information at http://www4.va.gov/healtheligibility/Library/pubs/CombatVet/CombatVet.pdf or 1-877-222-VETS (8387).

:  (Decisional) ()  .  The Applicant contends his post-service achievements warrant consideration for a discharge upgrade.  The NDRB considers post-service conduct in order to determine if the misconduct committed during active duty was indicative of the Applicant’s character or an aberration.  However, there is no law or regulation that provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  The Applicant provided a personal statement, character reference letters, transcripts, professional certification, and contract awards as evidence of post-service accomplishments.  Although his efforts to improve his life are noteworthy and commendable, completion of these items alone, however, does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis.  After careful consideration of and deliberation on all the available evidence, the NDRB determined (by a 3-2 split vote) that the Applicant’s 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  record entries, the Board found the discharge was proper and equitable at the time of discharge.  The Board determined that the awarded characterization of service shall  UNDER OTHER THAN HONORABLE CONDITIONS) and the narrative reason for separation shall remain MISCONDUCT (SERIOUS OFFENSE).  The Applicant is strongly encouraged and 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 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