ex-HN, USN

Current Discharge and Applicant’s Request

Application Received: 20120424
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)	19960910 - 19970304  	Active:		19970305 - 19990318  

Period of Service Under Review:
Date of Current Enlistment:  19990319	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20050317	Highest Rank/Rate:  HM3
Length of Service:   Year(s)     Month(s)   29 Day(s)
Education Level:  	AFQT:  53
Evaluation Marks:	Performance:  NFIR	Behavior:  NFIR	OTA:  NFIR

Awards and Decorations (per DD 214):	   

Periods of CONF:  
Time Lost (per DD 214):  20021001, 1 day

NJP:  

- 20010412:	Article  (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer)
	Awarded: FOP   Suspended:  

- 20021001:	Article  (Absence without leave, 20020909-20020923, 15 days)
	Awarded:   Suspended:  

- 20030410:	Article  (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer, 2 specifications)
	Specification 1: Ordered by HM2 to remove his black watch cap and refused to do so
	Specification 2: After Sgt explained to all the members in the tent the proper gear to wear SN began yelling “I don’t have to be told everyday what to wear,” and when approached by Sgt and HM2, SN turned away and refused to listen to his superiors
	Article  (Failure to obey order or regulation, 2 specifications) 
	Specification 1: Giving Phenergan (a drug that is not over-the-counter) to patients without the approval from an Independent Duty Corpsman or a Medical Officer
	Specification 2: Dereliction in the performance of his duties, to wit:  SN did not challenge persons on or near his post and while on post SN was packing away his items instead of standing his watch
	Awarded:   Suspended:  

- 20040729:	Article  (Forgery)
	Awarded:     Suspended:  FOP 

SCM:     		SPCM:     		CC:  

Retention Warning Counseling:  

- 20041213:	For issuing checks to the Marine Corps Exchange without sufficient funds in your bank account.  The check numbers and amounts are as follows:  #1008 $25.00, #509 $100.00, #1106 $100.00, #1121 $100.00, #1123 $29.00, totaling $354.00 not including the $125.00 in fees.  Check number 509 was written by your wife, the remaining four were written by yourself or one of your dependents.

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:  “PRESIDENTIAL UNIT CITATION, NATIONAL DEFENSE SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON, GLOBAL WAR ON TERRORISM SERVICE MEDAL, GOOD CONDUCT MEDAL, CERTIFICATE OF COMMENDATION, PISTOL MARKSMAN BADGE”
	  “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 970305 UNTIL 990318”
	  “”

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), re-issued October 2002, effective 22 August 2002 until 25 April 2005, Article 1910-140, SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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 he is 100% disabled due to Post-Traumatic Stress Disorder (PTSD) and Traumatic Brain Injury (TBI), and he would like an upgrade so he may receive additional veteran benefits. 
2.	The Applicant believes he was unfairly targeted because of his PTSD and TBI and wrongly separated.

Decision

Date:  20120913		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 and TBI, 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 record indicates the Applicant deployed to Iraq from 30 January 2003 - 2 August 2003 in support of Operation IRAQI FREEDOM. 

Although the Applicant served in a combat zone, a thorough review of the Applicant’s military service and medical records showed no indication the Applicant suffered any combat-attributing traumatic experience.  Instead, the records clearly shows the Applicant was treated for injuries sustained in two privately owned motor vehicle accidents, one on 14 May 2002 and the other on 20 October 2004, while off duty in the Camp Pendleton area.  The Applicant was diagnosed by the U.S. Department of Veterans Affairs (VA) with service-connected PTSD on 11 May 2005 and TBI on 28 April 2009.  The Applicant provided a copy of his Disability Compensation Awards letter and treatment record from the VA, indicating he was assigned a combined 100% disability rating.  Decisions reached by VA to determine if former servicemembers rate certain VA benefits do not affect previous discharge decisions made by the Navy.  The criteria used by the VA in determining whether a former servicemember is eligible for benefits are different than that used by the Navy when determining a member’s discharge characterization.

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, 20020909-20020923, 15 days), Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer, 2 specifications: Specification 1: Ordered by HM2 to remove his black watch cap and refused to do so; Specification 2: After Sgt explained to all the members in the tent the proper gear to wear, SN began yelling, “I don’t have to be told everyday what to wear,” and when approached by Sgt and HM2, SN turned away and refused to listen to his superiors), Article 92 (Failure to obey order or regulation, 2 specifications: Specification 1: Giving Phenergan (a drug that is not over-the-counter) to patients without the approval from an Independent Duty Corpsman or a Medical Officer; Specification 2: Dereliction in the performance of his duties, to wit: SN did not challenge persons on or near his post and while on post SN was packing away his items instead of standing his watch), and Article 123 (Forgery).  Based on the offenses committed by the Applicant,  command administratively processed  for separation.  When notified of administrative separation processing using the  procedure, the Applicant exercised  rights to consult with a qualified counsel, submit a written statement, and request an administrative board.  The Applicant appeared before the Administrative Separation Board (ASB) on 6 January 2005.  The ASB determined by a unanimous vote, 3-0, that the preponderance of the evidence supported the notification for separation, and the ASB recommended that the Applicant should be separated from the Navy with a General (Under Honorable Conditions) characterization of service.  The Separation Authority approved the ASB’s recommendations and discharged him accordingly. 

:  (Nondecisional) The Applicant contends he is 100% disabled due to PTSD and TBI, and he would like an upgrade so he may receive additional veteran benefits.  The 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.

:  (Decisional) ()  .  The Applicant believes he was unfairly targeted because of his PTSD and TBI and wrongly separated.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was unfairly targeted or treated poorly by his chain of command for any reason.  The Applicant clearly had an established pattern of misconduct during this enlistment with a Page 13 retention warning and four NJPs that included violations of UCMJ Articles 86, 91, 92, and 123.  The Applicant was provided the opportunity to present his case before an ASB, who recommended separation with a General (Under Honorable Conditions).  Additionally, the NDRB determined that the Applicant’s PTSD/TBI did not mitigate his misconduct.  The NDRB discerned no impropriety or inequity and determined the Applicant’s discharge was proper and equitable.  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