ex-HR, USN

Current Discharge and Applicant’s Request

Application Received: 20120423
Characterization of Service Received:  
Narrative Reason for Discharge:   
Authority for Discharge:  MILPERSMAN 

Applicant’s Request:	Characterization change to:	
	Narrative Reason change to:	CONVENIENCE OF THE GOVERNMENT

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	19981109 - 19981214  	Active:		19981215 - 20030109  

Period of Service Under Review:
Date of Current Enlistment:  20030110	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20050630	Highest Rank/Rate:  HM3
Length of Service:   Year(s)     Month(s)   21 Day(s)
Education Level:  	AFQT:  74
Evaluation Marks:	Performance:  4.0 (4)	Behavior:  2.8 (4)	OTA:  3.58

Awards and Decorations (per DD 214):	 (3)   (3)   (2)  

Periods of CONF:  20050605 - 20050630 (24 days)
 
NJP:  
- 20040528:	Article  (Disrespect to a superior commissioned officer, arguing with Bn Surgeon, 20040423)
	Article  (Misappropriation of government property, steal a pair of night vision goggles, 20040423)
	Article  (Assault, committed assault, 20040407)
	Awarded:   (to E-3)   Suspended:  

SCM:  1
- 20050605:	Article 112a (Wrongful use of controlled substance, methamphetamine, 2433 ng/ml)
		Awarded: Details NFIR
		[* extracted from SCM appointment order, SCM acknowledgment of rights election form, 
		NAVDRUGLAB msg dated 20050208, and DD-214 Time Lost] 
 
SPCM:  		CC:  		Retention Warning Counseling:  

CIVIL ARREST:  
- 20041023:	Charges:  Possession for sale of a controlled substance (methamphetamine).

Administrative Corrections to the Applicant’s DD 214

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

	  “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19981215 UNTIL 20030109”
	
The NDRB will recommend to the Commandant of the Marine Corps 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.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 29 April 2005 until 27 July 2005, Article 1910-144, Separation by Reason of Misconduct - Civilian Conviction. 

B.  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 89, 112a, 121, and 128.

C.  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.	Applicant seeks a discharge upgrade to increase employment opportunities. 
2.	Applicant seeks a discharge upgrade to obtain veteran benefits.
3.	Applicant contends previously undiagnosed Post-Traumatic Stress Disorder (PTSD) mitigates the misconduct for which he was separated.
4.	Applicant contends his post-service achievements warrant consideration for a discharge upgrade.

Decision

Date:  20121009		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 deployed twice to Iraq in support of Operation Iraqi Freedom and was diagnosed with PTSD by competent medical authority at the Department of Veterans Affairs. 

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.  Although the Applicant’s Medical Records were not available for review, the Board completed a thorough review of the available records to determine the circumstances that led to his discharge and the discharge process to ensure his 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 89 (Disrespect to a superior commissioned officer, argued with Battalion Surgeon, 23 April 2004), Article 121 (Larceny, misappropriation of government property, one pair of night vision goggles, 23 April 2004), and Article 128 (Assault, 7 April 2004).  The record also revealed the Applicant was arrested by civil authorities on 23 October 2004 for possession of a controlled substance for sale (methamphetamine) and being under the influence of methamphetamine.  Additionally, documentation within the record indicates the Applicant tested positive on a command urinalysis for amphetamine (593 ng/ml) and methamphetamine (2433 ng/ml), as evidenced by NAVDRUGLAB msg 082333Z Feb 05.  Although the Applicant’s records are incomplete, the available documentation indicates the Applicant was referred for trial by summary court-martial for violation of UCMJ Article 112a (Wrongful use, possession, etc of a controlled substance, methamphetamine).  Based on the serious and repeated offenses committed by the Applicant,  command administratively processed  for separation.  Per the Naval Military Personnel Manual (MILPERSMAN), processing for administrative separation is mandatory for violation of UCMJ Article 112a.  When notified of administrative separation processing using the  procedure on 16 December 2004, the Applicant exercised his right to consult with a qualified counsel but waived his rights to submit a written statement and request an administrative separation board.  On 1 March 2005, the Commander, Navy Personnel Command directed that the Applicant be separated from the Navy with an Under Other Than Honorable Conditions discharge due to Misconduct - Civil Conviction.  The Applicant was discharged on 30 Jun 2005 as directed. 

Issues 1-2:  (Nondecisional)  The Applicant seeks a discharge upgrade to increase employment opportunities and to obtain veteran 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.  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 previously undiagnosed PTSD mitigates the misconduct for which he was separated.  The Applicant submitted documentary evidence from the Department of Veteran Affairs that indicates his post-service diagnosis and treatment for PTSD (combat related).  Additionally, mental health evaluation records and physician recommendations support the Applicant’s contention that the effects of undiagnosed PTSD contributed to the misconduct that resulted in the Applicant’s administrative separation from the Navy.  After detailed analysis and careful consideration of all the available documentary evidence, to include the evidence submitted by the Applicant, his notable achievements in a previous enlistment, and his awards and combat service, the NDRB determined that although the Applicant was responsible for his actions, the effects of combat-related PTSD did have a significantly negative impact on the previous exemplary performance and conduct reflected in the Applicant’s five-year record of service before his second combat deployment to Iraq.  Accordingly, the NDRB found that the Applicant’s issue warranted partial relief on the grounds of equity, and therefore, the awarded characterization of service shall change to General (Under Honorable Conditions).  Partial relief warranted.  Full relief to Honorable was not granted as the Applicant did commit several serious offenses and bears some responsibility for his actions.

Issue 4:  (Decisional) ()  .  The Applicant contends his post-service achievements warrant consideration for a discharge upgrade.  The NDRB considers post-service conduct 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, a representative legal brief, Department of Veteran Affairs correspondence, and character reference letters as evidence of post-service accomplishments.  Submission of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis and adjudicated based on the merits of the case.  After considering the Applicant’s total record of service, his combat deployment experiences, his PTSD diagnosis, and the documentation submitted in support of his discharge review (April 2012 and August 2012), the NDRB determined the Applicant’s issue did not provide a basis for further relief than what was provided in Issue 3.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, the administrative separation process, and documentation submitted on behalf of the Applicant, the Board found the discharge was proper and equitable at the time of discharge.  However, based on substantial post-service medical evidence and other documentation submitted to the Board, the NDRB determined that PTSD mitigated his misconduct and so the awarded characterization of service shall  GENERAL (UNDER HONORABLE CONDITIONS) but 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