ex-SB3, USN

Current Discharge and Applicant’s Request

Application Received: 20151228
Characterization of Service Received:   
Narrative Reason for Discharge:    
Reentry Code:  
Authority for Discharge:   MILPERSMAN 

Applicant’s Request:	Characterization change to:	
	Narrative Reason change to:	
	Reentry Code change to: NONE REQUESTED

Summary of Service

Prior Creditable Service:
Inactive:			Active:	 

Period of Service Under Review:
Date of Enlistment:  20070611	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20120202	Highest Rank/Rate:  SB2
Length of Service:   Year(s)     Month(s)   22 Day(s)
Education Level:  	AFQT:  72

Evaluation Marks (# of occasions):  Performance/Proficiency: 3.2 (6)   Behavior/Conduct: 2.5 (6)    OTA: 3.12   
Fitness Reports: 

Awards and Decorations (per DD 214):	Pistol  NDSM GWOTSM SSDR NMCAM ICM

Periods of UA:  NONE
Periods of CONF:  NONE
Other Time Lost per DD214:  NONE

NJP:  1

- 20111021:	Article 92 (Failure to obey order, regulation)
	Article 116 (Breach of peace)
	Article 128 (Assaults)
	Article 134 (General Article, Disorderly conduct, drunkenness)
	Article 134 (General Article, Reckless endangerment)
	Awarded:    Suspended:    

SCM:  	SPCM:  	CC:  	Retention Warning Counseling:  

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 070611 UNTIL 110609”

The NDRB will recommend to the Commandant of the Marine Corps or Commander, Navy Personnel Command that the DD 214 be corrected as appropriate.

Types of Documents Submitted/reviewed

	DD 214:		Service/Medical Record:		Other Records:	
	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 15560D), 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 IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications.

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

Applicant’s Issues

1.	The Applicant contends that the discharge is improper because of errors in fact that prejudiced his rights in that the Applicant did not get consideration for his first enlistment which he completed honorably.  
2.	The Applicant contends the discharge is improper and should be upgraded to Honorable Secretarial Authority because of errors of procedure which prejudiced the Applicants rights because the service record did not contain his separation package and rights notification, mental health mitigation, and documentation for his last episode of alleged misconduct which stemmed from the sense of brotherhood indoctrinated in him by the Navy and SBT-22.
3.	The Applicant contends the discharge is improper and should be upgraded to Honorable Secretarial Authority because the actions by the command were arbitrary, capricious, and an abuse of discretion because the Pattern of Misconduct spanned two enlistments.
4.	The Applicant contends the discharge was inequitable based on overall quality of service and post-service.
5.	The Applicant contends that the discharge is inequitable and should be upgraded on grounds of his capability to serve.

Discussion

Date:  201611129		Location:  WASHINGTON D.C.	Representation:  

The Naval Discharge Review Board (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 the discharge and the discharge process to ensure the pertinent standards of equity and propriety were met.  

As a result of the Applicant’s claim that a mental health condition impacted their discharge, and in accordance with U.S. Code, Title X, Section 1553 (e)(2), and Memorandum, The Secretary of Defense, to Secretaries of the Military Departments, subject: Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder (3 Sep. 2014), the NDRB included a member who is a clinical psychologist or psychiatrist, or a physician with special training on mental health disorders.  

As a result of the Applicant’s claim of PTSD or TBI, in accordance with U.S. Code, Title X, Section 1553 (d)(1), and Memorandum, The Secretary of Defense, to Secretaries of the Military Departments, subject: Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder (3 Sep. 2014), the NDRB 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 to Iraq from September 2009 to March 2010. 

The Applicant's record of service included:

  for  of the Uniform Code of Military Justice (UCMJ): 
	Article 92 (Failure to obey order, regulation)
Article 116 (Breach of Peace)
Article 128 (Assaults)
Article 134 (General Article, Disorderly conduct, drunkenness)
Article 134 (General Article, Reckless endangerment)

Based on the  committed by the Applicant, the command administratively processed the Applicant for separation.  The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived their rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority Review.

:  The Applicant contends that the discharge is improper because of errors in fact that prejudiced his rights in that the Applicant did not get consideration for his first enlistment which he completed honorably.  The Applicant’s record did not contain a reenlistment contract, but it did include two counseling sheets dated 10 June 2011 which are completed during a reenlistment.  The Applicant provided copies of his certificate of honorable discharge issued on 09 June 2011, his certificate of reenlistment issued on 10 June 2011, and copies of Defense Finance and Accounting Service worksheets for recoupment of a reenlistment bonus at the time of his discharge.  The NDRB found this sufficient credible evidence that a reenlistment occurred.  The NDRB will make the recommendation for an administrative correction to the Commander, Navy Personnel Command.  The NDRB encourages the Applicant to submit his amended DD Form 214 to the U.S. Department of Veterans Affairs (VA) for a records review to determine his eligibility for post-service benefits based on this Honorable period of service.    

Issue 2:    The Applicant contends the discharge is improper and should be upgraded to Honorable Secretarial Authority because of errors of procedure which prejudiced the Applicants rights because the service record did not contain his separation package and rights notification, mental health mitigation, and documentation for his last episode of alleged misconduct which stemmed from the sense of brotherhood indoctrinated in him by the Navy and SBT-22.  During the Applicant’s second enlistment, the service record documents an NJP on 21 October 2011 for violations of UCMJ Articles 92, 116,128, and 134.  The medical record obtained from Armed Forces Health Longitudinal Technology Application (AHLTA) documents a second incident of misconduct on August 2011 that resulted in a civilian arrest.  The Applicant, in his statement to the Board, recalls going to NJP for this incident.  The NDRB concurs that the second NJP, separation package and rights acknowledgment were not included in the Applicant’s official service record.  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.  In this case, the Applicant has provided no evidence that the separation package and rights acknowledgement were not properly completed or that the Applicant was prejudiced during the separation other than the fact that the paperwork was not included in the official service record. 

The charges from the 21 October 2011 NJP alone could have resulted in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial.  It is the Board’s opinion that the leniency of the discharge following a second incident of misconduct reflected consideration for the Applicant’s accomplishments as well as mitigation for alcohol abuse and mental health state.   The Applicant’s service and medical record as well as the information provided to the NDRB by the Applicant are consistent with the discharge characterization of Under Honorable Conditions (General) and narrative reason for discharge of Pattern of Misconduct that the Applicant received on his official DD-214.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances.

Issue 3:  The Applicant contends the discharge is improper and should be upgraded to Honorable Secretarial Authority because the actions by the command were arbitrary, capricious, and an abuse of discretion due to the Pattern of Misconduct spanning two enlistments.  The Applicant did not provide any evidence that the command’s actions were arbitrary, capricious or an abuse of discretion other that identifying missing paperwork in the Applicant’s official record.  On the contrary, the Applicant could have been discharged from service several times during his career due to misconduct, but instead the command retained him and provided treatment for his alcohol dependency.  

Issue 4:  The Applicant contends the discharge was inequitable based on overall quality of service and post-service.  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.  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.  In this case, the Applicant’s record documents two incidents of misconduct during the second sixteen month enlistment as documented by an NJP on 21 October 2011, and a civilian arrest in August 2011 which demonstrates repeated willful misconduct.  The Board determined that the documentation submitted by the Applicant does not demonstrate that the characterization was the anomalous or out of character behavior.

Issue 5:  The Applicant contends that the discharge is inequitable and should be upgraded on grounds of his capability to serve.  The NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline.  Although the Applicant may feel that his dysthymic disorder was the underlying cause of his misconduct, the record reflects willful repeated misconduct that demonstrated he was unfit for further service.  In this case, the evidence of record does not show that the Applicant’s mental health issues were sufficient mitigating factors to fully excuse the Applicant’s conduct or accountability concerning his actions and that a characterization of Under Honorable Conditions (General) was both proper and equitable in this situation.   
Decision

After a thorough review of the available evidence, to include the Applicant’s issues, summary of service,  record entries, and discharge process, the Board found  at the time of discharge.  Therefore, the awarded characterization of service shall  UNDER HONORABLE CONDITIONS (GENERAL), the narrative reason for separation shall  MISCONDUCT - PATTERN OF MISCONDUCT with a corresponding separation code of JKA, and the reentry code shall  RE-4 .  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of the 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/.  More information is available at http://www.secnav.navy.mil/mra/CORB/pages/ndrb/default.aspx.

Additional Reviews: After a document review has been conducted, former members are eligible for a personal appearance or telephonic 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, or http://www.secnav.navy.mil/mra/bcnr/Pages/default.aspx 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: Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code.  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-Traumatic Stress Disorder and/or Traumatic Brain Injury: For all claims involving PTSD and/or TBI, the NDRB’s review implemented the guidance set forth in the SECDEF Memorandum of 3 September 2014 (Supplemental guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder).  In accordance with U.S. Code, Title X, Section 1553 (d)(1) & d(2), the NDRB included a member who is a physician, clinical psychologist, or psychiatrist and accorded the case sufficient priority to achieve an expedited resolution and a final decision.

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.

Military Sexual Trauma: The Department of Veterans Affairs (VA) uses the term "military sexual trauma" (MST) to refer to experiences of sexual assault or repeated, threatening sexual harassment experienced while on federal active duty, active duty for training, or inactive duty training.  To get confidential one-on-one help please contact the MST Coordinator at your nearest VA Medical Center or Call Safe Helpline at 1-877-995-5247 or visit www.mentalhealth.va.gov/msthome.asp.

Reporting Military Sexual Trauma: To report a military sexual trauma, you can make an anonymous report to the Naval Criminal Investigative Service (NCIS) by Text or Online.  The NCIS Tip Line provides service members, veterans and civilians a safe, discreet and ANONYMOUS option to report criminal and force protection threats within the USN and USMC without concerns of retaliation.  To report a crime by Text: Text  274637 (CRIMES); Type “NCIS” at the top of the message; and include as much detail as possible to ensure your tip can effectively be investigated.  To send your ANONYMOUS Tip via the online, go to https://www.tipsubmit.com/webtipsNAV.aspx?AgencyID=840.

Suicide Prevention: Veterans in emotional crisis or their loved ones can call the free and confidential Veterans Crisis Line at 1-800-273-8255 (then press 1); or chat online at http://www.veteranscrisisline.net, or send a text message to 838255 to connect with a caring, qualified Veteran Affairs Responder who can deal with any immediate crisis.