ex-LTJG, USN

Current Discharge and Applicant’s Request

Application Received: 20130610
Characterization of Service Received:   
Narrative Reason for Discharge:   
Authority for Discharge:   SECNAVINST 1920.6C

Applicant’s Request:	Characterization change to:	GENERAL (under honorable conditions)
	Narrative Reason change to:	

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	19980423 - 19980511  	Active:		19980512 - 20041117  
				USN	20041118 - 20070930  HON

Period of Service Under Review:
Date of Appointment:  20071001	Age:  
Years Contracted:  Indefinite
Date of Discharge:  20111014	Highest Rank:  LTJG
Length of Service:   Years     Months   14 Days
Education Level:  
Officer’s Fitness reports:  Available

Awards and Decorations (per DD 214):	NMCAM

Periods of UA/CONF:  		DISCHARGED IN ABSENTIA

NJP:  	SCM:  	SPCM:  	Retention Warning Counseling:  

CC:  

- 20100615:	Offense:  Gross vehicular manslaughter while intoxicated, driving under the influence and causing gross bodily injury, and driving under the influence while having a 0.08 percent or more alcohol and causing gross bodily injury
	Sentence: 5 years and 3 months confinement

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:  “NATIONAL DEFENSE SERVICE MEDAL, GLOBAL WAR ON TERRORISM SERVICE MEDAL, GOOD CONDUCT MEDAL (3), SEA SERVICE DEPLOYMENT RIBBON (3), ENLISTED SURFACE WARFARE SPECIALIST, NAVY PISTOL EXPERT MEDAL, NAVY AND MARINE CORPS ACHIEVEMENT MEDAL (2), MERITORIOUS UNIT COMMENDATION (2), NAVY BATTLE "E" RIBBON (2), ARMED FORCES EXPEDITIONARY MEDAL (2), NAVY RIFLE EXPERT MEDAL, GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL, MILITARY OUTSTANDING VOLUNTEER SERVICE MEDAL, HUMANITARIAN SERVICE MEDAL, ARMY ACHIEVEMENT MEDAL”
	  “”
	  “SECNAVINST 1920.6C”

The NDRB will recommend to the Commander, Navy Personnel Command, PERS-312A, 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

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 violations of the UCMJ, Articles 111 (Drunken or reckless operation of a vehicle) and 119 (Manslaughter).

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

Applicant’s Issues

1.	The Applicant seeks an upgrade to reenter the U.S. Armed Forces.  
2.	The Applicant contends his in-service performance and conduct warrants an upgrade.
3.	The Applicant contends his post-service conduct is worthy of consideration for an upgrade.
4.	The Applicant contends Post-Traumatic Stress Disorder (PTSD) mitigates his misconduct.

Decision

Date:  20140212		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 in Iraq from 2009-2010 in support of Operation IRAQI 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 no NAVPERS 1070/613 (Page 13) warnings and no misconduct resulting in nonjudicial punishment or court-martial.  However, the Applicant’s command processed him for administrative separation based on his Civilian Conviction for violating California Vehicle Penal Code 191.5(a) (Gross vehicular manslaughter while intoxicated) and California Vehicle Penal Code 23153(a) (Driving under the influence while having a .08 percent or more of alcohol and causing gross bodily injury).  The NDRB did not have the Applicant’s administrative separation package to determine whether or not he waived  rights to consult with a qualified counsel and submit a written statement.  Per the Applicant’s Fitness Report and Counseling Record of 29 March 2011, he was sentenced to 5 years and 3 months in civilian confinement on 15 June 2010 and was ordered to show cause for retention on 18 October 2010.  The separation code GKB on the Applicant’s DD Form 214 indicates he exercised his right to an administrative board.

:  (Nondecisional)  The Applicant seeks an upgrade to reenter the U.S. Armed Forces.  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 Board for Correction of Naval Records 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.

:  (Decisional) ()  .  The Applicant contends his in-service performance and conduct warrants an upgrade.  The Applicant received Honorable discharges for his two enlistments from May 1998 to September 2007.  Each period of enlistment is an independent obligation and characterization is determined for that specific period of time.  The Applicant was commissioned on 1 October 2007, and it was while serving as an officer that he was convicted in a civilian court.  Since the Applicant was administratively separated and not separated upon expiration of fulfillment of service obligation, the characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current period of service, including the reason for separation.  Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition.  Based on the Applicant’s record of service as a commissioned officer, 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.

:  (Decisional) ()  .  The Applicant contends his post-service conduct is worthy of consideration for an upgrade.  The NDRB considers 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.  The Applicant provided a personal statement, a certificate of completion with distinction (Paralegal) from Blackstone Career Institute, a certificate of completion (Forest Fire Training Program) from the State of California Sierra Conservation Center, a certificate of completion (Physical Fitness Training), a certificate of completion (Introduction to Wild Land Fire Behavior), two certificates of completion from California State University, Sacramento (Operation of Water Treatment Plants, Volumes I and II), two character references while serving as an inmate firefighter at the Owens Valley, California and La Cima, California Conservation Camps, and certification that he successfully completed a pre-release program.  Completion 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 to determine if post-service conduct establishes that the in-service misconduct was an aberration.  The Board determined the characterization of service received was appropriate considering the Applicant’s misconduct.  Relief denied.

4:  (Decisional) ()  .  The Applicant contends PTSD mitigates his misconduct.  The Applicant submitted documentation from his civilian lawyer citing PTSD as a mitigating factor during the sentencing for his civilian convictions.  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 did not find any reference to a medical diagnosis of PTSD in the Applicant’s service record, and the Applicant did not provide any documentary evidence of a medical diagnosis by competent medical authorities.  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.  The NDRB determined PTSD did not mitigate his misconduct, and his discharge was warranted, 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