ex-ABEAR, USN

Current Discharge and Applicant’s Request

Application Received: 20160035
Characterization of Service Received:   
Narrative Reason for Discharge:    
Reenlistment Code:  
Authority for Discharge:   MILPERSMAN 

Applicant’s Request:	Characterization change to:	
	Narrative Reason change to:	

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	20060526 - 20060604  	Active:	

Period of Service Under Review:

Date of Current Enlistment:  20060605	Age at Enlistment:  
Period of Enlistment:   Years   Extension 
Date of Discharge:  20071116	Highest Rank/Rate:  ABEAN
Length of Service:   Year(s)     Month(s)   12 Day(s)
Education Level:  	AFQT:  36
Evaluation Marks:	Performance:  NFIR 	Behavior:  NFIR 	OTA:  NFIR

Awards and Decorations (per DD 214):    

Periods of  CONF:  

NJP:  

- 20071016:	Article  3 Specifications
                       Specification 1:  On 0915-1121, 20071012
                       Specification 2:  On 0715-1815, 20071009  
                       Specification 3:  On 0700-1500, 20071007  
	Article  3 Specifications
                       Specification 1:  Disobey a lawful order from a commissioned officer on 20070708
                       Specification 2:  Disobey a lawful order from a commissioned officer on 20070709
                       Specification 3:  Disobey a lawful order from a commissioned officer on 20070710
                       Awarded:       Suspended:      

- 20071030:	Article  10 Specifications
                       Specification 1:  1130-1600, 20071019
                       Specification 2:  Restricted muster at 1600, 20071019 
                       Specification 3:  Restricted muster at 0630, 20071026
                       Specification 4:  Restricted muster at 1600, 20071028
                       Specification 5:  Restricted muster at 1130, 20071029
                       Specification 6:  Restricted muster at 1600, 20071029
                       Specification 7:  Restricted muster at 1800, 20071029
                       Specification 8:  Restricted muster at 2130, 20071029
                       Specification 9:  Restricted muster at 0600, 20071030
                       Specification 10:  Restricted muster at 1100, 20071030
	Awarded:       Suspended:      

- 20071106:	Article  3 Specifications
                       Specification 1:  Restricted muster at 1130, 20071102
                       Specification 2:  Restricted muster at 0630, 20071103
                       Specification 3:  Restricted muster at 0730, 20071104
                       Awarded:       Suspended:      

SCM:         SPCM:         CIVIL ARREST:         Retention Warning Counseling:  

Administrative Corrections to the Applicant’s DD 214

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

	  “ABEAR”
	  “E1”

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:	

Types of Witnesses Who Testified

	Expert:		Character:	

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until 11 June 2008, Article 1910-142, SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

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 violation of the UCMJ, Article 92.  

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

Applicant’s Issues

1.	The Applicant contends that his post-service mental health diagnosis existed while in-service and mitigates his misconduct leading to his discharge.

Decision

Date:  20160505		Location:  Washington D.C.	Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  .

Discussion

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 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   for  of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation; 3 specifications), and Article 86 (Absence without leave; 16 specifications).  Based on the offense(s) committed by the Applicant,  command administratively processed  for separation.  When notified of administrative separation processing using the  procedure, the Applicant exercised  right to consult with a qualified counsel, but waived his rights to submit a written statement, and request an administrative board.  

As a result of the Applicant’s claim that a mental health diagnosis impacted their discharge, and in accordance with U.S. Code, Title X, Section 1553 (e)(2), the NDRB included a member who is a clinical psychologist or psychiatrist, or a physician with special training on mental health disorder.  The Board’s review included consideration of 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 section 1553 (d)(2), the service secretary expedited a final decision and accorded the case sufficient priority to achieve an expedited resolution. 

:  (Decisional) ()  .  The Applicant contends that his post-service mental health diagnosis existed while in-service and mitigates his misconduct leading to his discharge.  The Applicant had a previous discharge review by the NDRB on 24 January 2013 resulting in a decline for relief.  The current review is for a mental health condition that was not brought as an issue for the Applicant’s first review.  The Applicant was discharged from the Navy on 16 November 2007 for reason of misconduct.  The Applicant submitted Department of Veterans Affairs (VA) medical records as evidence that after the Applicant was discharged from the Navy his mother referred him for a mental health evaluation on 2 January 2008 because he was exhibiting symptoms of strange behavior.  After evaluation by mental health specialists, the Applicant was diagnosed with Axis I:  Schizophrenia.  The Applicant was prescribed medication that was able to control his mental health condition and symptoms of strange behavior.  By adhering to a strict regimen of daily medication, the Applicant has been able to function independently, obtain an Associate’s Degree from college, obtain a Commercial Driver’s License, and has now been employed as a commercial truck driver since August 2014.  After review of the Applicant’s medical records, and testimonials, the NDRB determined the Applicant does suffer from a mental health condition, and that his mental health condition existed prior to his administrative separation from the Navy for misconduct.  Although the Applicant did not prove his condition was so severe as to render him unable to tell the difference between right and wrong, the NDRB does agree that his condition does provide for some mitigation in the type of discharge he received.  Therefore, the NDRB determined the Applicant’s discharge should be changed to General (Under Honorable Conditions); however, the narrative reason for discharge shall remain Misconduct.  Partial relief is granted.

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 at the time of discharge.  However, based on new evidence of a mental health condition that existed in service, the awarded characterization of service shall change to GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain MISCONDUCT (SERIOUS OFFENSE).

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, 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-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