ex-AMEAA, USN

Current Discharge and Applicant’s Request

Application Received: 20140211
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)	20040823 - 20050611  	Inactive:	USNR 	20050629 - 20060318  
Inactive:	USNR (DEP)	20080709 - 20081027  

Period of Service Under Review:
Date of Current Enlistment:  20081028	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20100818	Highest Rank/Rate:  AMEAN
Length of Service:   Year     Months   22 Days
Education Level:  	AFQT:  49
Evaluation Marks:	Performance:  1.5 (2)	Behavior:  1.5 (2)	OTA:  2.41

Awards and Decorations (per DD 214):	Pistol      

Periods of UA/CONF:  

NJP:  

- 20100523:	Article  (Failure to obey order or regulation)
	Article  (Absence without leave) 
	Awarded:   2 months ORAL REPRIMAND     Suspended:     1 month
	[vacated suspended punishment on 20100731]

- 20100731:	Article 92 (Failure to obey order or regulation; did, on or about 22 July 2010, fail to obey a lawful order by wrongfully wearing an earring)
	Article  (Insubordinate conduct toward warrant, noncommissioned, petty officer, 2 specifications)
	Specification 1: On or about 22 July 2010, did threat with contempt or was disrespectful in language toward Master Chief Petty Officer Aircraft Maintenanceman, a noncommissioned officer, then known to be a superior commissioned officer, who was then in the execution of his office, on Khaki Patrol, by saying to him, “Don’t cuss at me,” or words to that effect
	Specification 2: On or about 24 July 2010, did treat with contempt or was disrespectful in language toward Aviation Machinist Mate Chief Petty Officer, a noncommissioned officer, then known to be a superior noncommissioned officer, who was in the execution of his duties as the Maintenance Duty Chief, by saying to him, “Are you asking me or telling me?” or words to that effect, in a discourteous manner after being asked repeatedly for his Armed Forces Identification Card
	Article  (Provoking speech, gestures; on active duty, on or about 24 July 2010, wrongfully use provoking words, to wit: “I’m urinating in your rack” or words to that effect toward an Aviation Ordnanceman Airman
	Awarded:    3 days Confinement on Bread and Water         Suspended:   

SCM:  	SPCM:  	CC:  

Retention Warning Counseling:  

- 20100523:	For violations of UCMJ Article 92 and Article 86; reference NJP dated 20100523 

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 Present, 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 his minor misconduct was the result of severe racial harassment in his unit.
2.	The Applicant contends racism in his unit influenced the basis and severity of disciplinary actions against him, and it has caused him to suffer from Post-Traumatic Stress Disorder (PTSD).
3.	The Applicant contends separation documents reported disciplinary actions that never occurred.
4.	The Applicant contends two disciplinary actions incorrectly describe extended periods of misconduct.
5.	The Applicant contends he was denied his request for an attorney at the Captain’s Mast immediately before his separation proceeding.
6.	The Applicant contends his otherwise honorable service renders his General (Under Honorable Conditions) discharge far too harsh.
7.	The Applicant contends his post-service conduct warrants an upgrade to Honorable.

Decision

Date:  20140731		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’s service record documents completion of a deployment conducting combat support operations in support of Operation ENDURING 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  NAVPERS 1070/613 (Page 13) warning and   for  of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave), Article 91 (Insubordinate conduct toward warrant, noncommissioned, petty officer, 2 specifications), Article 92 (Failure to obey order or regulation, 2 specifications), and Article 117 (Provoking speech, gestures).  Based on the offenses committed by the Applicant,  command administratively processed  for separation.  When notified of administrative separation processing using the  procedure, the Applicant waived  rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review. 

:  (Decisional) ()  .  The Applicant contends his minor misconduct was the result of severe racial harassment in his unit, and the racism in his unit influenced the basis and severity of disciplinary actions against him.  Additionally, the harassment has caused him to suffer from PTSD.  In addition to his statement, the Applicant submitted a photograph and a letter from a former member of his command in support of his allegations of racism.  The Applicant also submitted post-service documentation from the Department of Veterans Affairs that indicates he was diagnosed with Major Depressive Disorder, Single Moderate and PTSD as a result of racial hazing while in service.  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.  There is no evidence in the record, nor has the Applicant produced conclusive evidence, to support the contention that he was racially harassed or that he was treated more harshly than others due to his race.  The photograph submitted by the Applicant, without context, is not substantial proof of a racist act against the Applicant.  In-service medical documentation submitted by the Applicant states that the Applicant felt as though he was being harassed at work but does not cite racial discrimination or racial harassment.  There is 

no evidence that the Applicant presented his allegations of racial harassment to the Command-Managed Equal Opportunity Manager while on active duty.  When notified of administrative separation, the Applicant waived his right to consult with counsel, submit a written rebuttal to the separation, and request a General Court-Martial Convening Authority review.  The statements and documentary evidence submitted by the Applicant do not overcome the government’s presumption of regularity in this case.  Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy.  A preponderance of the evidence reviewed supports the conclusion that the Applicant’s separation from the Naval Service was appropriate and that a General (Under Honorable Conditions) discharge was warranted.  Finally, the NDRB determined PTSD did not mitigate his misconduct.  Relief denied.

:  (Decisional) ()  .   The Applicant contends separation documents reported disciplinary actions that never occurred.  After reviewing the Applicant’s record of misconduct, the NDRB concurs with the Applicant that the Commanding Officer, Strike Fighter Squadron 115, in his letter of 02 August 2010 recommending administrative separation, incorrectly states the Applicant was found guilty at NJP for violating Article 115 (Malingering).  The Applicant was, however, found guilty at NJP on 23 May 2010 for violating UCMJ Article 86 and Article 92.  The Applicant received a retention warning counseling on 23 May 2010 and was subsequently found guilty at NJP on 31 July 2010 for further violations of the UCMJ: Article 92, Article 117, and two specifications of Article 91.  Pursuant to Article 1910-140 of the Naval Military Personnel Manual, separation by reason of Pattern of Misconduct was warranted based on the Applicant’s record of misconduct.  The NDRB determined this error did not materially prejudice the Separation Authority’s decision to separate the Applicant and award a General (Under Honorable Conditions) characterization of service.  Relief denied.

4:  (Decisional) ()  .  The Applicant contends two disciplinary actions incorrectly describe extended periods of misconduct.  The Applicant cites that the documentation of his two NJPs inaccurately portrays his misconduct to occur over a period of several days vice isolated incidents on single days.  The Applicant contends these errors were prejudicial to the outcome of his separation.  The violations of the UCMJ committed by the Applicant, despite the time frame over which they were committed, warranted separation for a Pattern of Misconduct.  The NDRB determined this issue did not materially prejudice the outcome of the Applicant’s separation process.  Relief denied. 
 
5:  (Decisional) ()  .  The Applicant contends he was denied his request for an attorney at the Captain’s Mast immediately before his separation proceeding.  In accordance with Part V of the Manual for Courts-Martial, servicemember’s have the right to be represented by counsel at a Special or General Court-Martial.  Although servicemembers have the right to seek legal advice at any time, they do not have the right to be represented by legal counsel at nonjudicial punishment.  Relief denied.

6:  (Decisional) ()  .  The Applicant contends his otherwise honorable service renders his General discharge far too harsh.  The Applicant was administratively separated and not separated upon expiration of enlistment or 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 enlistment, 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 upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy.  The NDRB determined the Applicant’s service was honest and faithful but significant negative aspects of his conduct or performance of duty outweighed the positive aspects of his service record.  Relief denied.

7:  (Decisional) ()  .  The Applicant contends his post-service conduct merits recognition and warrants an upgrade to Honorable.  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 Shasta College football team roster, a newspaper article, and three character references.  The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum, however, 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 length of service and UCMJ violations.  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