ex- HA, 

Current Discharge and Applicant’s Request

Application Received: 20161109
Characterization of Service Received:   
Narrative Reason for Discharge:   PATTERN OF MISCONDUCT
Authority for Discharge:   MILPERSMAN 1910-140 [PATTERN OF MISCONDUCT] 

Applicant’s Request:	Characterization change to:	
Narrative Reason change to: REQUESTED BUT NOT SPECIFIED
Reentry Code change to: RE-1

Summary of Service

Prior Creditable Service:
Inactive:	 	             	Active:	 

Period of Service Under Review:
Date of Enlistment:  20090616	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20131021	Highest Rank/Rate:  HM3
Length of Service:   Year(s)     Month(s)   06 Day(s)
Education Level:  	AFQT:  60

Evaluation Marks (# of occasions):  Performance/Proficiency: 2.7 (4)   Behavior/Conduct: 3.0 (4)   OTA: 3.00 
Fitness Reports: 

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

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

NJP:  

- 20110713:	Article 86 (Absence without leave, etc.) 2 specifications  
	Article 92 (Failure to obey order, regulation)
	Awarded:       Suspended:      

- 20130815:	Article 86 (Absence without leave, etc.) 
	Awarded:       Suspended:   (Vacated 20131003)

- 20131003:	Article 86 (Absence without leave, etc.) 3 specifications
	Awarded:       Suspended:      

SCM:    SPCM:    CIVIL ARREST:     CC:  

Retention Warning Counseling:  

- 20130925:	For violation of UCMJ Article 86 (Absence without leave), resulting in CO’s NJP on 20130815. Subsequent violations of the UCMJ could result in administrative separation under Other Than Honorable conditions. 

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 40, effective 21 July 2012 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 requests a change to his character of service, narrative reason for separation and reentry code in order to reenlist in the U.S. Navy
2.	The Applicant requests a change to his character of service, narrative reason for separation and reentry code contending that his discharge was a direct result of extreme punishments that were greatly influenced by an unjust prejudice against his sexual orientation.
3.	The Applicant contends that his misconduct, specifically being late for work took place after traumatic and heartbreaking instances in his life and that he suffered from depression as well as a sleeping disorder and had been prescribed medication for both.

Discussion

Date:  20170321		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 of PTSD, TBI, Military Sexual Trauma, or a mental health condition, and in accordance with U.S. Code, Title X, § 1553; 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.  Additionally, the NDRB reviewed the case with liberal consideration that PTSD, TBI, or Military Sexual Trauma, or a mental health condition potentially contributed to the circumstances resulting in the discharge of a lesser characterization.  A review of the record revealed that the Applicant did not deploy in support of a contingency operation, and so this case did not warrant an expedited review in accordance with U.S. Code, Title X, § 1553.

The Applicant's record of service included:

  for  of the Uniform Code of Military Justice (UCMJ): 
Article 86 (Absence without leave, etc.) 6 specifications
Article 92 (Failure to obey order, regulation)

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 and to submit a written statement.  A separation code of JKA in the Applicant’s DD Form 214 indicates that he was not entitled to an Administrative Separation Board.

:  The Applicant requests a change to his character of service, narrative reason for separation and reentry code in order to reenlist in the U.S. Navy.  Effective 06 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.

:  The Applicant requests a change to his character of service, narrative reason for separation and reentry code contending that his discharge was a direct result of extreme punishments that were greatly influenced by an unjust prejudice against his sexual orientation.  The Applicant provided references that stated they witnesses prejudice to personnel on the USS GEORGE H. W. BUSH (CVN-77) to include the Applicant and that other personnel who were late did not receive the same punishment the Applicant did.  

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 record shows that the Applicant was found guilty of UMCJ violations at three NJPs and was discharged with a character of service Under Honorable Conditions (General) and a narrative reason for separation of Misconduct – Pattern of Misconduct.  At his last NJP, he was found guilty of three specifications of UCMJ Article 86 (Absence without leave, etc.).  The record also shows that when notified of administrative separation processing, the Applicant was informed that the least favorable characterization of service possible would be General (Under Honorable Conditions).  The Applicant waived his rights to consult counsel and to submit a written statement.  If the Applicant felt that there were issues with separation to include that he was receiving an extreme punishment or that he was be prejudiced against because of his sexual orientation, it was his obligation to contest those charges at the time they were made.  The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances.  

:  The Applicant contends that his misconduct, specifically being late for work took place after traumatic and heartbreaking instances in his life and that he suffered from depression as well as a sleeping disorder and had been prescribed medication for both.  The Applicant states that his chain of command on the USS GEORGE H. W. BUSH (CVN-77) was aware was in a 13 hour hostile domestic hostage situation on 25 July 2013 involving a Second Class Petty Officer and that he had begun speaking with the ship’s Psychologist about this and other things he was experiencing.  The Applicant provided an on-line article mentioning that SWAT were called to respond to a man who threatened to harm himself and was charged with discharging a firearm in public (no mention of a hostage situation in the article).  The Applicant also provided two letters from The Office of the Commonwealth of Virginia Attorney City of Virginia Beach.  The first letter, dated 04 February 2014, notified the Applicant that he had received a subpoena to testify as a witness in this case.  The second letter, dated 06 March 2014 stated that the defendant was found guilty of brandishing and reckless handling of a firearm and he was to have no contact with the Applicant (no mention of a hostage situation).  The Applicant states that he was four minutes late the next day and went to NJP.  The record shows that he was absent without leave four days after the incident took place and that he was absent without leave three additional times after this.  Though the Applicant may feel that his mental health was the underlying cause of his misconduct, the evidence of record did not show that the mental health was a sufficient mitigating factor to excuse the Applicant’s conduct or accountability concerning his actions.  After an exhaustive review, the NDRB determined that mental health did not mitigate the Applicant’s misconduct. The NDRB concluded the command acted appropriately, equitably, and properly in processing the Applicant for separation.  

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.