ex-LT, USN

Current Discharge and Applicant’s Request

Application Received: 20120104
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  SECNAVINST 1920.6C

Applicant’s Request:	Characterization change to:	
	Narrative Reason change to:	REMOVE REFERENCE TO FALSE OFFICIAL STATEMENTS

Summary of Service

Prior Service:
Inactive: USN (USNA)	19980701 - 20020523  	Active:	

Period of Service Under Review:
Date of Appointment:  20020524	Age:  22
Years Contracted:  Indefinite
Date of Discharge:  20110915	Highest Rank:  LT 
Length of Service:   Year(s)     Month(s)   23 Day(s)
Education Level:  	AFQT:  NFIR
Officer’s Fitness reports:  Available

Awards and Decorations (per DD 214):	    

TL per DD214: 20110324-20110914

NJP:  		SCM:    		SPCM:    		Retention Warning Counseling:  

CIVIL ARREST:  

- 20100501:	Charges:  Driving under the influence, which resulted in a death of a civilian.

Administrative Corrections to the Applicant’s DD 214

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

	  “”
	  “SECNAVINST 1920.6C” 
	  “MISCONDUCT (SERIOUS OFFENSE)”

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.  Secretary of the Navy Instruction 1920.6C (ADMINISTRATIVE SEPARATION OF OFFICERS), effective 15 December 2005 until PRESENT establishes policies, standards and procedures for the administrative separation of Navy and Marine Corps officers from the naval service in accordance with Title 10, United States Code and DoD Directive 1332.30 of 14 March 1997.

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 107 and Article 111.  

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

Applicant’s Issues

1.	The Applicant contends the Board of Inquiry (BOI) erred when it found the Applicant had committed the serious offense of false official statement and the subsequent recommendation to discharge him with a characterization Under Other Than Honorable Conditions.
2.	The Applicant contends the reviewing authorities and Separation Authority erred when they ignored the BOI’s material error regarding the serious offense of false official statement.  
3.	The Applicant contends that once his request for a continuance was denied, the recorder used the denial as an offensive weapon against him during the BOI in an unfair and inequitable manner.
4.	The Applicant contends his alcohol dependence was ignored or given insufficient weight by the BOI and the Separation Authority.
5.	The Applicant contends his overall performance of duty outweighs his misconduct and a discharge Under Other Than Honorable Conditions is unfair and inequitable.
6.	The Applicant contends his borderline diagnosis of Post-Traumatic Stress Disorder (PTSD) and periods of crippling anxiety and depression mitigate his misconduct. 

Decision

Date:  20130206		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 claim 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 reviewed the Applicant’s forensic mental health evaluation dated 14 December 2012; the examiner’s opinion was that the Applicant had experienced crippling anxiety, suffered from major depression, and met the criteria to support a borderline diagnosis of PTSD as a result of several traumatic events during his multiple deployments as a helicopter pilot and as an instructor pilot.  The Applicant’s service record documents completion of deployments as an SH-60B pilot/co-pilot in the Arabian Gulf, Horn of Africa, and the Caribbean.

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.  The Applicant’s record of service included no misconduct resulting in nonjudicial punishment or court-martial.  However, the Applicant was arrested on 01 May 2010 for driving under the influence, which resulted in a death of a civilian.  Based on the offenses committed by the Applicant,  command administratively processed  for separation.  The Applicant exercised his rights to a BOI, to be represented by qualified counsel, and to submit a statement in rebuttal to the BOI findings and recommendations.  The BOI voted 3-0 that the Applicant did commit a military or civilian offense which, if prosecuted under the UCMJ, could be punished by confinement for six months or more - Article 107 (False official statements) and Article 111 (Drunken or reckless operation of vehicle, aircraft, or vessel).  In addition, the BOI voted 3-0 that the Applicant failed to perform to prescribed standards of military deportment and recommended the Applicant be separated with a characterization Under Other Than Honorable Conditions.  

:  (Decisional) ()  .  The Applicant contends the BOI erred when it found the Applicant had committed the serious offense of false official statement and the subsequent recommendation to discharge him with a characterization of Under Other Than Honorable Conditions.  The Applicant contends that the BOI erred because the Applicant was not in the line of duty, therefore, his statement was not an “official statement.”  The Applicant further contends that the false official statement was the most serious misconduct the BOI members found that the Applicant had committed 

based on the recorder’s evidence on the maximum confinement of committing violations of a false official statement and the drunken operation of a vehicle.  These issues were highlighted by the Applicant’s statement in his rebuttal to the BOI findings and recommendations to the Separation Authority dated 04 March 2011.  After a complete review of the records and arguments submitted by the Applicant, the NDRB determined the proceedings, findings, and recommendations of the BOI were proper and that the Applicant did commit the serious offenses of violating UCMJ Articles 107 and 111.  Further, the NDRB determined the characterization of service Under Other Than Honorable Conditions was equitable considering the serious level of misconduct committed by the Applicant.  Relief denied.

:  (Decisional) ()  .  The Applicant contends the reviewing authorities and Separation Authority erred when they ignored the BOI’s material error regarding the serious offense of false official statement.  The Separation Authority and Staff Judge Advocate conducted a review of the discharge package, which included the BOI proceedings and recommendations, and determined the Applicant committed a serious offense and that separation was warranted Under Other Than Honorable Conditions for Misconduct (Serious Offense).  The NDRB determined the Applicant was afforded all of his administrative rights pursuant to the separation process, that there was no material error with regard to the finding of false official statement, that discharge was warranted, and that a characterization of service Under Other Than Honorable Conditions was equitable.  Relief denied.

:  (Decisional) ()  .  The Applicant contends that once his request for a continuance was denied, the recorder used the denial as an offensive weapon against him during the BOI in an unfair and inequitable manner.  The Applicant was provided the opportunity to present his case before his BOI and counter the recorder’s statements.  The statements and documents provided by the Applicant do not refute the presumption of regularity in this case.  The NDRB determined there was no impropriety or inequity in the denial of the request for continuance or the BOI proceedings and recommendations.  Relief denied. 

4:  (Decisional) ()  .  The Applicant contends his alcohol dependence was ignored or given insufficient weight by the BOI and the Separation Authority.  Alcohol dependence or abuse is never a rationale or an acceptable excuse for inappropriate conduct, misconduct, or poor judgment.  The NDRB determined the BOI and Separation Authority did not ignore or give insufficient weight to the Applicant’s alcohol dependence and further determined the Navy medical diagnosis of the Applicant’s alcohol dependence and his significant steps to resolve or control his alcohol dependence did not mitigate his misconduct.  The Applicant was responsible for his misconduct, and his command acted appropriately, equitably, and properly in processing the Applicant for separation with a characterization Under Other Than Honorable Conditions.  Relief denied.

5:  (Decisional) ()  .  The Applicant contends his overall performance of duty outweighs his misconduct and a discharge Under Other Than Honorable Conditions is unfair and inequitable.  Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the  to maintain proper order and discipline.  Violation of Articles 107 and 111 are two offenses that warrant processing for administrative separation regardless of grade, performance, character references, or time in service.  This usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial.  A BOI properly found that the Applicant committed serious offenses.  Based on the Applicant’s record of service, and taking into consideration a letter of character reference from a Navy commander (CDR Q_), the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service, and the awarded characterization of service was warranted.  Relief denied.

6:  (Decisional) ()  .  The Applicant contends his borderline diagnosis of PTSD and periods of crippling anxiety and major depression mitigate his misconduct.  Though the Applicant may believe his borderline PTSD and periods of crippling anxiety and major depression led him to self-medicate with alcohol and 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.  Driving under the influence was a conscious decision to violate the tenets of honorable and faithful service.  After a complete review of the forensic mental health evaluation dated 14 December 2012, the Applicant’s service and medical records, and taking into consideration the unique facts and circumstances of this case, the NDRB determined his borderline PTSD and periods of crippling anxiety and major depression did not mitigate his misconduct and that relief was not warranted on this issue.  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 NDRB 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 15 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