ex- SA, 

Current Discharge and Applicant’s Request

Application Received: 20170208
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: NONE REQUESTED
Reentry Code change to: NONE REQUESTED

Summary of Service

Prior Creditable Service:
Inactive:	 	             	Active:	 

Period of Service Under Review:
Date of Enlistment:  20130910	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20150616	Highest Rank/Rate:  SN
Length of Service:   Year(s)     Month(s)   07 Day(s)
Education Level:  	AFQT:  60

Evaluation Marks (# of occasions):  Performance/Proficiency: 3.0 (3)   Behavior/Conduct: 1.7 (3)   OTA: 2.78 
Fitness Reports: 

Awards and Decorations (per DD 214):	Pistol  NDSM  

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

NJP:  

- 20141001:	Article 91 (Insubordinate conduct toward warrant, noncommissioned, petty officer) 
	Article 92 (Failure to obey order, regulation)
	Article 117 (Provoking speech, gestures)
	Article 128 (Assaults)
	Awarded:       Suspended:      

- 20150415:	Article 86 (Absence without leave, etc.) 3 specifications
	Article 92 (Failure to obey order, regulation) 2 specifications
	Article 107 (False official statements) 2 specifications
	Awarded:       Suspended:      

SCM:    SPCM:     CIVIL ARREST:      CC:  

Retention Warning Counseling:  

- 20141001:	For CO’s NJP held on 20141001 for violation of the UCMJ, Article 91, contempt or disrespect toward warrant, noncommissioned, or petty officer (you were disrespect in language and deportment at Command DRB, a panel of Master Chief Petty Officers, by saying, “Thank you Master Chief,” or words to that effect); violation of the UCMJ, Article 92, failure to obey other lawful or order (disobeyed a lawful order by your Department Head to not make any physical contact with other Sailors by wrongfully striking another Sailor in the stomach with fist); violation of the UCMJ, Article 117, provoking speeches or gestures (you wrongfully used provoking words, to wit: “I don’t understand Ebonics, I’m not African American, speak English when you talk to me,” or words to that effect towards another Sailor); and violation of the UCMJ, Article 128, assault consummated by a battery (unlawfully striking another Sailor in the stomach with your fist).          

NDRB Documentary Review Conducted (date):	20160203
NDRB Documentary Review Docket Number:	ND15-01645
NDRB Documentary Review Findings:		Proper as issued and that no change is warranted.

Administrative Corrections to the Applicant’s DD 214

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

	  “UNDER HONORABLE CONDITIONS (GENERAL)”

The NDRB will recommend to Commander, Navy Personnel Command or Commandant of the Marine Corps 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:	
 
Types of Witnesses Who Testified

	Expert:  			Character:    

	Witness E-1:			Witness C-1:	
	Witness E-2:			Witness C-2:

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.	On the Naval Discharge Review Board (DD Form 293) Application signed by the Applicant on 11 September 2015 and received by the NDRB on 8 February 2017, the Applicant contends that “I believe the causes of a second Captain’s Mast 20150414 was due to a medical condition that was brought up in mast and told by me it was able to be court martial.  I have numerous medical conditions and was all disregarding revolving directly about the reason I had to leave was due scrotal cysts.  I was charged with article 92 spec. 1, and told about scratching genital.”

2.   On the Application signed by the Applicant on 11 September 2015 and received by the NDRB on 8 February 2017, the Applicant contends that “Belief in unjust and unfair in both Captain’s Mast, especially in administrative separation for an incident with a clear past, present and future medical situation resolving the genitals.  During an XOI inquiry on 04/15/15 Charge 2, UCMJ Article 92 Failure to obey lawful order specification 1 SECNAVINST 5300.26D 3 January 2006 wrongful scratching his genitals.”

3.	The Applicant contends a Traumatic Brain Injury offers mitigation for his misconduct.

4.	The Applicant alleges his case was not handled in accordance with 10 U.S.C. § 1553.

5.	The Applicant believes not all material before the NDRB was made available to his counsel.

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.

As a result of the Applicant’s claim of PTSD, TBI, Military Sexual Trauma, or a mental health condition, and in accordance with 10 U.S.C. § 1553, the NDRB included a member who is a physician, clinical psychologist, or psychiatrist.  Additionally, and pursuant to § 1553, the NDRB reviewed the case with liberal consideration that PTSD, TBI, or Military Sexual Trauma 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 § 1553.

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)
Article 107 (False official statements)
Article 117 (Provoking speech, gestures)
Article 128 (Assaults)

Based on the  committed by the Applicant, the command administratively processed the Applicant for separation.   When notified of administrative separation processing, the Applicant  their rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority Review.   

Issue 1:  On the NDRB Application signed by the Applicant on 20 August 2015 and received by NDRB on 13 October 2015, the Applicant contends that “I believe the causes of a second Captain’s Mast 20150414 was due to a medical condition that was brought up in mast and told by me it was able to be court martial.  I have numerous medical conditions and was all disregarding revolving directly about the reason I had to leave was due scrotal cysts.  I was charged with article 92 spec. 1, and told about scratching genital.”  

Per the Commanding Officer (CO)’s letter dated 25 May 2015, the Applicant’s second Captain’s Mast was on 15 April 2015 and included three specifications of Article 86, Unauthorized absence, for failing to attend training, muster and general quarters in March and April of 2015 as well as two specifications of Article 92, Failure to obey order or regulation, for being in his rack in uniform in April and for scratching his genitals on 20 March 2015 after being asked to stop.  The Applicant provided documentation with his application for medical treatment for scrotal cysts pre-service and for medical procedures in June 2015 which is after the NJP.  The documentation provided does not provide credible evidence to document why the Applicant (even assuming arguendo he could not control scratching his genitals in public) did not or could not leave the area and/or not stop repeatedly scratching his genitals in the presence of others when specifically asked, nor does the medical documentation coincide with the periods of unauthorized absence.   

On 20 April 2015, the Applicant appealed the NJP based on it being unjust due to his pleas of not guilty and inability to view all evidence against him.  The CO found that the evidence consisting of sworn statements, chain of command comments, witness testimony, documentation of counseling and the Applicant’s own admission was sufficient evidence.  The CO contended that the Applicant was given the opportunity to review all evidence and his initials and signature on the NAVPERS 1626/7 acknowledged his understanding of the evidence in addition to his verbal acknowledgement at XOI and NJP.  The CO adds that the evidence supports that the Applicant was deliberately and repeatedly scratching his genitals in front of a shipmate who repeatedly asked him to stop in violation of the Department of the Navy Policy on Sexual Harassment (SECNAVINST 5300.26D).  Commander, Strike Group EIGHT denied the appeal on 10 June 2015.  Violation of Article 92, Failure to obey order or regulation, is a serious offense and could have resulted in a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial.  The command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge.  The NDRB found no impropriety or inequity in the actions related to the Captain’s Mast on 15 April 2015.

Issue 2:  On the Application signed by the Applicant on 11 August 2015, and received by NDRB on 17 September 2015, the Applicant contends that “Belief in unjust and unfair in both Captain’s Mast, especially in administrative separation for an incident with a clear past, present and future medical situation resolving the genitals.  During an XOI inquiry on 04/15/15 Charge 2, UCMJ Article 92 Failure to obey lawful order specification 1 SECNAVINST 5300.26D 3 January 2006 wrongful scratching his genitals.”  Issue 1, above, addresses the NDRB’s analysis of the second Captain’s Mast conducted on 15 April 2015 which included the violation of Article 92 for violation of SECNAVINST 5300.26D for repeatedly scratching his genitals after being asked to stop.  

The Applicant’s first Captain’s Mast was 01 October 2014. The Applicant did not provide any evidence or specific reasons why he thought the first Captain’s Mast was unjust or unfair other than his contradictory testimony of the event.  During the Captain’s Mast on 01 October 2014, the Applicant was found guilty of Article 91 (Insubordinate conduct toward WO, NCO or PO), Article 92 (Failure to obey order or regulation), Article 117 (Provoking speech or gestures), and Article 128 (Assault).  Per the CO’s recommendation for administrative separation letter dated 25 May 2015, the incident involved a verbal and physical altercation in the workplace where the Applicant punched another sailor in the stomach and said offensive racial slurs to him.  Additionally, he was disrespectful to a Master Chief Petty Officer at his Disciplinary Review Board.  The Applicant did not appeal the Non-judicial Punishment.  The NDRB found that the punishment awarded at the Captain’s Mast was equitable and consistent with punishments given others in similar circumstances.  Additionally, the NDRB found insufficient evidence the provoking speech or gestures/physical assault was related to a medical condition.  The command properly initiated an administrative separation for a Pattern of Misconduct based on the two Non-judicial Punishments, and the Applicant was found physically qualified for separation on 16 June 2015.  The NDRB found the characterization of the Applicant’s discharge was proper and equitable.  

Regarding the Applicant’s issue/contention concerning his medical condition/disability, pursuant to Secretary of the Navy Instruction 5420.174D, Naval Discharge Review Board (NDRB) Procedures and Standards, the NDRB does not have the authority to change a narrative reason for discharge to a physical disability.  Only the BCNR can grant this type of narrative reason change and can be petitioned for a determination of whether the medical condition or underlying diagnosis interfered significantly with the applicant’s ability to carry out the duties of their office, grade, rank or rating.  The Applicant (using DD Form 149) may file the petition with BCNR, at 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490. Their website can be found at http://www.secnav.navy.mil/mra/bcnr.  

:  The Applicant contends a Traumatic Brain Injury (TBI) offers mitigation for his misconduct.  The Applicant opines that he received a TBI when the sailor he was found guilty of assaulting punched the Applicant in the face in self-defense.  As the alleged TBI resulted from the Applicant’s own misconduct, the Board found that TBI did not mitigate the first NJP of provoking speech or gestures/physical assault.  In regards to the second NJP, when the Board specifically questioned if the Applicant was attributing his TBI as the cause of his actions of scratching his genitals he responded “no”.  While consideration can be given to some of the other elements of the second NJP if they were an isolated incident, the repetitive nature and conscious disregard for orders and regulations encompassing three violations of Article 86, a separate violation of Article 92, and two violations of Article 107 demonstrate deliberate acts of misconduct.  The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances.  

4:  The Applicant alleges his case was not handled in accordance with 10 U.S.C. § 1553.  Specifically the Applicant believes his case was not expedited and did not include a sufficiently trained physician.  In regards to affording sufficient priority to the case, the Applicant’s counsel was confounded by the Applicant’s resubmission of his DD-293 that was originally signed on 11 September 2015 and received for his documentary review on 17 September 2015.  The Applicant did not change the date on the DD-293 when he submitted the same document for a personal appearance hearing.  His request for the personal appearance hearing was received on 8 February 2017, a confirmation and acknowledgement was mailed to the Applicant on 20 March 2017, and docketing and scheduling were sent on 14 April 2017 for a hearing date of 19 July 2017.  Current average processing time for a personal appearance hearing is 12-14 months.  Therefore, the NDRB believes the Applicant’s five month wait to be sufficiently faster than the average wait to objectively meet the standard of sufficient priority to achieve an expedited resolution.

In regards to the membership of the Board, the Director of the Secretary of the Navy Council of Review Boards has certified the membership of the personnel, to include the training and suitability to adjudicate all matters brought before the board.  In the immediate case the Physician detailed was properly trained and certified to adjudicate all cases before both the NDRB and the Physical Evaluation Board (PEB).  Specific to 10 U.S.C. § 1553, all medical personnel certified on the NDRB are psychiatrists or physicians with training on mental health issues connected with post traumatic stress disorder or traumatic brain injury (as applicable).  Medical Officers having completed the training required by DoDD 1332.18 and formally certified in writing by the PEB as qualified to adjudicate PEB cases are deemed as having met the statutory requirement necessary for physician board members in NDRB cases involving PTSD, TBI, or other mental health disorders.

5:  The Applicant believes not all material before the NDRB was made available to his counsel.  The NDRB did not use any information not contained in the Applicant’s official personnel or medical records.  In accordance with DoDI 1332.28, “the DRB shall provide the applicant, at a reasonable time before initiating the decision process, a notice of the availability of all regulations and documents to be considered in the discharge review, except for documents in the official personnel or medical records and any documents submitted by the applicant”.  Further referenced was the Applicant’s response in block 8 of his DD-293 stating he was submitting “numerous documents, medical paperwork, statements persunal [sic]”.  The Applicant did not include the stated attachments with his application.  As stated the NDRB did not use or rely on any information not contained in the Applicant’s official personnel or medical records.  

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  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.