ex-ABFAR, USN

Current Discharge and Applicant’s Request

Application Received: 20120207
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)	20070706 - 20070925  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20070926	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20101129	Highest Rank/Rate:  ABFAN
Length of Service:   Year(s)     Month(s)   04 Day(s)
Education Level:  	AFQT:  35
Evaluation Marks:	Performance:  3.2 (5)	Behavior:  2.2 (5)	OTA:  3.03

Awards and Decorations (per DD 214):	   

Periods of CONF:  
 
NJP:  

- 20080923:	Article 92 (Failure to obey order or regulation, dereliction in the performance of duties, 20080707) 
	Awarded:   RIR (to E-2)   Suspended:  RIR  (suspend 6 months)

- 20100727:	Article  (Assault upon a sentinel or lookout, 2 specifications, 20100703) 
	Article 134 (General Article, disorderly conduct, 20100703) 
	Awarded:  (to E-2)     Suspended:   (suspend 6months)

- 20101110:	Article  (Insubordinate conduct toward a Petty Officer, 3 specifications, 20100907)
	Article  (General Article, threat communicating, 2 specifications, 20100907)
	Awarded:  (to E-1)     Suspended:   (suspend 6 months)

- 20101124:	Article  (Absence without leave, missed four restriction musters) 
	Awarded:    Suspended:  

SCM:  		SPCM:  		Retention Warning Counseling:  

CC:  
 
- 20090827:	Offense:  Driving under the influence and underage possession of alcohol   
	Sentence:  $250.00 fine, $25.00 assessments, supervised probation for 1 yr, operator’s license suspended for 12 months and alcohol education treatment 

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 29, effective 10 November 2009 until 17 August 2011, 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, 128, and 134.  

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

Applicant’s Issues

1.	Applicant seeks a discharge upgrade to increase employment opportunities. 
2.	Applicant seeks a discharge upgrade to obtain veteran benefits.  
3.	Applicant contends alcohol and bad dreams related to his experiences supporting a humanitarian mission in Haiti led to the misconduct for which he was separated.
4.	Applicant contends Post-Traumatic Stress Disorder (PTSD) mitigates the misconduct for which he was separated.  

Decision

Date:  20120322		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 Applicant served aboard USS Carl Vinson (CVN 70) and participated in relief operations off the coast of Haiti during Operation Unified Response in 2010. 

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 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   for  of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, missed four restriction musters), Article 91 (Insubordinate conduct toward Petty Officer, was ordered by his Leading Petty Officer to assume his watch duties to which he refused, then became belligerent and disrespectful toward LPO by using derogatory language and displaying threatening gestures), Article 92 (Failure to obey an order or regulation, dereliction in the performance of duties, 7 Jul 2008), Article 128 (Assault upon a sentinel or lookout, 2 specifications, 3 Jul 2010), and Article 134 (General Article, 3 specifications: Disorderly conduct, 3 Jul 2010 and two incidents of communicating a threat, was ordered by his Leading Petty Officer to assume his watch duties to which he refused and then became belligerent and disrespectful toward LPO by using derogatory language and displaying threatening gestures.)  The record also revealed a civil conviction for driving under the influence of alcohol (DUI) and underage possession of alcohol.  Based on the repeated and serious nature of the offenses committed by the Applicant, his command administratively processed him for administrative separation.  When notified of administrative separation processing using the  procedure (for commission of a serious offense and civil conviction) on 15 Nov 2010, the Applicant waived  rights to consult with a qualified counsel, submit a written statement, and request an administrative separation board.  The Applicant received a pre-separation physical on 15 Nov 2010 in which he provided no complaints to the medical officer regarding any current medical or mental health issues.  Within the medical documentation, the NDRB noted that the Applicant was screened for PTSD and Traumatic Brain Injury (TBI) as evidenced by the following notations: “Was the member deployed to an imminent danger pay (IDP) zone?” NO; “Was PTSD or TBI a contributing factor to this separation?” NO.  On 24 Nov 2010, the Applicant’s Commanding Officer endorsed his administrative separation package stating, “(The Applicant’s) chain of command has extended a great deal of effort to bring this Sailor up to Navy standards.  While pending separation, (the Applicant) gave up and refused to comply with rules and regulations, not realizing that he is a United States Sailor until the day he is discharged.  Considering the surrounding circumstances and the likelihood of reoccurrence if retained, I have determined that (the Applicant) has no potential for further Naval Service and recommend that he be discharged with a characterization of Other Than Honorable.”  On 29 Nov 2010, the Applicant was separated from the Navy with an Under Other Than Honorable Conditions discharge due to Misconduct (Serious Offense) as directed by the Separation Authority.

Issues 1-2:  (Nondecisional) The Applicant seeks a discharge upgrade to obtain veteran benefits and increase his employment opportunities.  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.  Additionally, 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.

:  (Decisional) ()  .  The Applicant contends alcohol and bad dreams related to his experiences supporting a humanitarian mission in Haiti led to the misconduct for which he was separated.  While he may feel these were the underlying causes of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record does not demonstrate the Applicant was not responsible for his conduct or he should not be held accountable for his actions.  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.  Per the Naval Military Personnel Manual (MILPERSMAN), when a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under Honorable conditions.  A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweigh the positive aspects of the member’s service record.  An Under Other Than Honorable Conditions discharge is warranted when a Sailor commits or omits an act that constitutes a significant departure from the conduct expected from a Sailor.  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 considering his grade and length of service, and falls short of what is required for an upgrade in the characterization of service.  After careful consideration, the NDRB determined this issue to be without merit and did not provide a basis for which relief could be granted.  Relief denied. 

Issue 4:  (Decisional) ()  .  The Applicant contends PTSD mitigates the misconduct for which he was separated.  In addition to a statement from the Applicant, he submitted letters from his father and aunt that referenced his PTSD symptoms.  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 nor did the Applicant produce any medical diagnosis by competent medical authority to support his claim.  While he may feel that this was the underlying cause of his misconduct, the record clearly reflects his misconduct was willful and 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.  After careful consideration, the NDRB determined that the Applicant’s claim of PTSD had no bearing on the propriety and equity of his discharge and did not mitigate his misconduct.  The NDRB determined that the Applicant’s discharge was proper, equitable, and in accordance with the applicable orders and directives in effect at the time of his separation, and therefore, 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,  record entries and the administrative separation 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