ex- AMAA, 

Current Discharge and Applicant’s Request

Application Received: 20160413
Characterization of Service Received:   
Narrative Reason for Discharge:   MISCONDUCT
Authority for Discharge:   MILPERSMAN 1910-142 [COMMISSION OF A SERIOUS OFFENSE] 

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

Summary of Service

Prior Creditable Service:
Inactive:	               	Active:	  

Period of Service Under Review:
Date of Enlistment:  19991118	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20021002	Highest Rank/Rate:  AM3
Length of Service:   Year(s)     Month(s)   14 Day(s)
Education Level:  	AFQT:  63

Evaluation Marks (# of occasions):  Performance/Proficiency: 2.3 (1)   Behavior/Conduct: 1.7 (1)   OTA: 2.22 [two of the three evaluations were provided by the Applicant]
Fitness Reports: 

Awards and Decorations (per DD 214):	NDSM NAVY "E" AFEM OVSM SSDR   

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

NJP:  

- 20020806:	Article 86 (Absence without leave, etc.) 
	Article 92 (Failure to obey order, regulation) 3 specifications
	Article 107 (False official statements)	 
	Article 117 (Provoking speech, gestures)
	Awarded:          Suspended:     

- 20020830:	Article 91 (Insubordinate conduct toward warrant, noncommissioned, petty officer)
	Article 92 (Failure to obey order, regulation) 2 specifications
	Awarded:          Suspended:   

SCM:  	SPCM:  	CIVIL ARREST:  		CC:  

Retention Warning Counseling:  NFIR

Administrative Corrections to the Applicant’s DD 214

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

	  “UNDER OTHER THAN HONORABLE CONDITIONS”

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), re-issued October 2002, effective 22 August 2002 until 25 April 2005, 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 IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications.

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.

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

Applicant’s Issues

1.	The Applicant contends that even with his exceptional post-service conduct, that his character of service prevents him from fully realizing his potential.
2.	The Applicant requests a change to his character of service due to his post-service achievements.
3.	The Applicant contends that he was encouraged to waive representation and did not have the ability to defend himself or present evidence as to the reason for his delinquency and poor performance.
4.	The Applicant contends that he was having severe financial issues caused by his ex-wife while he was deployed to Bahrain, which included her obtaining substantial loans in his name, draining his bank account, and also calling his command stating that the Applicant was not providing enough financial support, which resulted in his deployed chain of command being contacted and him receiving counseling and quickly designated a “problem child.”
5.	The Applicant contends that he was hazed by a particular superior and requested not to work with him alone, which resulted in him receiving numerous counseling and corrections for incorrectly performing maintenance, even maintenance that he was not trained to perform. 
6.	The Applicant contends that his command’s total and utter disregard for concern for a series of physical and verbal altercation by his fellow service members contributed to his stress causing him to react out of character.
7.	The Applicant requests a change to his character of service contending that his discharge was inequitable because the convening authority did not have all of the information necessary to properly dispose of the case.
8.	The Applicant contends that he experienced a unique storm of stressors causing him to react out of character.

Discussion

Date:  20170719		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.  

The Applicant's record of service included:

  for  of the Uniform Code of Military Justice (UCMJ): 
	Article 86 (Absence without leave, etc.)
	Article 91 (Insubordinate conduct toward warrant, noncommissioned, petty officer)
	Article 92 (Failure to obey order, regulation) 5 specifications
	Article 107 (False official statements)
Article 117 (Provoking speech, gestures)

Based on the  committed by the Applicant, the command administratively processed the Applicant for separation.  When notified of administrative separation processing, the Applicant  his rights to consult with a qualified counsel, submit a written statement, and request an Administrative Separation Board.   

Issue 1:  	The Applicant contends that even with his exceptional post-service conduct, that his character of service prevents him from fully realizing his potential.  The Applicant stated that his employer can only hire him in a limited capacity due to his characterization of discharge and that this also affects future employment opportunities.  The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities or employment opportunities.  Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge.  As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.

Issue 2:  The Applicant requests a change to his character of service due to his post-service achievements.  The Applicant has stated that these post-service achievements include providing support to his family, earning bachelor’s degree, and soon will be graduating with a Master’s degree.  The Applicant provides financial records, college transcripts, and a professional summary.  
The NDRB is authorized to consider post-service factors in the re-characterization of a discharge.  However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question.  However, post-service conduct 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 provides a basis for a more thorough understanding of the performance of the Applicant during the period of service that is the subject of the discharge review.  The Board determined that an upgrade to the Applicant’s character of served based on post-service achievements alone is not warranted.  

Issue 3:  	The Applicant contends that he was encouraged to waive representation and did not have the ability to defend himself or present evidence as to the reason for his delinquency and poor performance.  The Applicant stated that he followed his chain of command’s advice that he should waive any right to counsel or appeal during the administrative proceedings against him.  The Applicant stated that when he was back in Norfolk, VA, he attempted to seek out legal advice from the Judge Advocate General’s (JAG) Office, but the JAG would not represent him.  He stated that could not afford a lawyer, so he was forced to go to NJP with no legal assistance.  The Applicant further stated that without the benefit of counsel, he was unable to either defend himself or even speak on his own behalf.  The Applicant provided a letter of reference from the Vice President of National Protective Service (and former Senior Non-Commissioned Officer) that states that he believes that there was no way the Applicant’s leadership should have allowed the Applicant to waive counsel and that he questions whether the Applicant actually understood what waving his rights meant, and the long-term ramifications it would have on his life.

The NDRB 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 Applicant did not provide any specific evidence that his command encouraged him not to seek counsel or that he attempted to seek legal advice from the JAG and was denied representation. The record shows that the Applicant had three occasions to request counsel, two for both NJPs (to refer to court-martial) and one during his administrative separation procedures.  The Applicant declined legal representation each time.  If the Applicant felt that there were mitigating circumstances concerning his misconduct at either NJP or in regards to his administrative separations proceedings such as the stressors he was experiencing while in Bahrain, it was his obligation to contest those charges at the time they were made.  During an Administrative Separation Board, he would have had the opportunity to mount a defense against the charges.  The Applicant submitted insufficient evidence to support his contention that he was denied legal representation, therefore, the NDRB relied upon the presumption of regularity in the conduct of government affairs.  The NDRB concluded the command acted appropriately, equitably, and properly in processing the Applicant for separation.  

Issue 4-8:  The Applicant contends that he was having severe financial issues caused by his ex-wife while he was deployed to Bahrain, which included her obtaining substantial loans in his name, draining his bank account, and also calling his command stating that the Applicant was not providing enough financial support, which resulted in his deployed chain of command being contacted, and him receiving counseling and quickly designated a “problem child.” The Applicant stated that as a result of the number of letters of counseling in his record, he went to NJP and was shipped back to Norfolk.  No charges for either NJP were in regards to the Applicant not providing for his family.  However, the Board found that the severe financial issues caused by his ex-wife while he was deployed to Bahrain was a mitigating factor in the Applicant’s reasoning process and misconduct.

The Applicant contends that he was hazed by a particular superior and formally requested not to work with him alone, which resulted in him receiving numerous counseling and corrections for incorrectly performing maintenance, even maintenance that he was not trained to perform.  The Applicant also contends that his command’s total and utter disregard for concern for a series of physical and verbal altercation by his fellow service members contributed to his stress causing him to react out of character.   The Applicant stated he was doused with hot water and forced to remain on duty, burned and soaked for the duration of his shift.  He further stated that the hazing became too much and he asked to file a grievance.  He stated that no action was ever taken against the crew who hazed him and 24 hours after he filed the grievance, he was pulled from the flight line and sent to the tool room.  Although there is limited evidence any hazing occurred, the Board found the Applicant’s belief he was the subject of hazing or physical and verbal altercations against him were mitigating factors for his misconduct.

The Applicant requests a change to his character of service contending that his discharge was inequitable because the convening authority did not have all of the information necessary to properly dispose of the case.  The Applicant stated that the convening authority neglected to take into consideration the undo stress he was under as a result of his ex-wife’s malicious use of his general power of attorney.  Although the Board presumed regularity in governmental affairs and presumed the Applicant’s convening authority had sufficient information to properly dispose of the case, the Board did find that the Applicant’s “undo stress” was a mitigating factor in the Applicant’s reasoning process.  

Finally, the Applicant contends that he experienced a unique storm of stressors causing him to react out of character.  The Applicant stated that these stressors included the debt his wife was accumulated while he was in Bahrain and bombarding his command with lies about the Applicant not providing financial support.  The NDRB determined that the stressors of deployment, the debt the Applicant’s wife accumulated while he was in he was in Bahrain, and her continual contact with his command regarding the amount of financial support she was receiving contributed to his misconduct and thus, a characterization of General (Under Honorable Conditions) is equitable and proper. 

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 .  Therefore, the awarded characterization of service shall  GENERAL (UNDER HONORABLE CONDITIONS), the narrative reason for separation shall  MISCONDUCT with a corresponding separation code of HKQ, and the reentry code shall  RE-4.  The Applicant is not eligible for further reviews by the NDRB.  The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149.  

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.