ex-ENFA, USN

Current Discharge and Applicant’s Request

Application Received: 20111012
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)	19990322 - 19990815  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  19990816	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20020920	Highest Rank/Rate:  ENFN
Length of Service:   Years     Month   05 Days
Education Level:  	AFQT:  32
Evaluation Marks:	Performance:  2.0 (1)	Behavior:  2.0 (1)	OTA:  2.33

Awards and Decorations (per DD 214):	SSDR AFEM NDSM

Periods of UA/CONF:  

NJP:  5

- 20010216:	Article 86 (Absence without leave)
	Article 90 (Assaulting or willfully disobeying a superior commissioned officer)
	Awarded: FOP 2 months RESTR EPD Suspended:  FOP 1 month EPD

- 20010304:	Article 92 (Failure to obey order or regulations, 4 specifications)
	Specification 1: Failure to obey order or regulations on 20 Feb 2001
	Specification 2: Failure to obey order or regulations on 24 Feb 2001
	Specification 3: Failure to obey order or regulations on 25 Feb 2001
	Specification 4: Failure to obey order or regulations on 04 Mar 2001
	Awarded: BW 3 days Suspended:  

- 20011030:	Article 92 (Failure to obey order or regulation)
	Awarded: RIR FOP RESTR EPD Suspended: RIR FOP

- 20020419:	Article 112a (Wrongful use, possession, etc. of controlled substances - marijuana, 31 ng/ml, NAVDRUGLAB msg 081429Z APR 02)
	Awarded: RIR FOP RESTR EPD Suspended: NONE

- 20020805:	Article 86 (Absence without leave - fail to go to appointed place of duty, 5 specifications)
	Specification 1: UA from USS ENTERPRISE from 28 Jun 2002 to 29 Jun 2002
	Specification 2: UA from USS ENTERPRISE from 0545, 01 Jul 2002 to 1130, 01 Jul 2002
	Specification 3: Failure to go to extra military instruction on 12 Jul 2002
	Specification 4: Failure to go to extra military instruction on 15 Jul 2002
	Specification 5: Failure to go to extra military instruction on 16 Jul 2002
	Awarded: RIR FOP 2 months RESTR EPD Suspended:  RIR FOP 1 month

SCM:  NONE     	SPCM:       	CC:   

Retention Warning Counseling:  1

- 20011106:	For failure to obey order or regulation

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.  The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 28 April 2005, Article 1910-146, SEPARATION BY REASON OF MISCONDUCT - DRUG ABUSE.

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.	The Applicant contends the lack of leadership and unfair treatment by his chain of command contributed to his misconduct.
2.	The Applicant contends his misconduct was a result of an in-service mental condition and his chain of command is at fault for not recognizing it.

Decision

Date:  20120510		Location:  Washington D.C.	Representation:  NONE

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

Discussion

As a result of the Applicant’s claim of Post-Traumatic Stress Disorder (PTSD), in accordance with U.S. Code, Title 10, 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 reviewed the Applicant’s personal statement.  The Applicant stated that he was diagnosed with PTSD related to his combat service in Afghanistan.  The record indicates the Applicant was assigned to USS Enterprise (CVN 65) from 29 November 2000 to 20 September 2002 and deployed in support of Operation Enduring Freedom.

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 Board did complete 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) warning and   for  of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, 6 specifications), Article 90 (Assaulting or willfully disobeying a superior commissioned officer), Article 92 (Failure to obey orders or regulations, 6 specifications), and Article 112a (Wrongful use, possession, etc. of controlled substances - marijuana, 31 ng/ml, NAVDRUGLAB msg 081429Z APR 02).  The Applicant  a pre-service drug waiver for using marijuana  prior to entering the Navy.  Based on the Article 112a violation, processing for administrative separation is mandatory.  When notified of administrative separation processing using the  procedure, the Applicant   rights to consult with a qualified counsel, submit a written statement, and request an administrative board.

:  (Decisional) ()  .  The Applicant contends the lack of leadership and unfair treatment by his chain of command contributed to his misconduct.  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 five nonjudicial punishments for violations of UCMJ Articles 86 (twice), 90, 92 (twice), and 112a.  Violations of UCMJ Articles 90, 92, and 112a are considered serious offenses for which a punitive discharge is authorized.  Statements alone, without sufficient documentary evidence, are not enough for the NDRB to form a basis of relief.  Relief denied.

:  (Decisional) ()  .  The Applicant contends his misconduct was a result of an in-service mental condition and his chain of command is at fault for not recognizing it.  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 requested the Applicant’s medical treatment records, but the VA was unable to locate them.  Furthermore, the NDRB did not find any reference to a medical diagnosis of PTSD in the Applicant’s service record to support his claim, and the Applicant did not provide any documentary evidence of a medical diagnosis by competent medical authorities in service to support his claim.  The Applicant did provide a post-service diagnosis of PTSD by a licensed clinical social worker that also diagnosed the Applicant with a Mood Disorder Not Otherwise Specified.  

Though the Applicant may feel that PTSD was the underlying cause of his misconduct, the record reflects willful misconduct that demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Of particular note, two significant instances of misconduct occurred before the deployment to the North Arabian Sea in support of Operation Enduring Freedom.  At no time did the Applicant serve in direct combat operations.  The NDRB determined that the Applicant’s diagnosis of PTSD did not mitigate his misconduct.  The NDRB determined illegal use of marijuana, absence without leave, failure to obey orders, and willfully disobeying a superior commissioned officer were all conscious decisions and violated the tenets of honorable and faithful service.  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 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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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