ex-ABEAA, USN

Current Discharge and Applicant’s Request

Application Received: 20140805
Characterization of Service Received:   
Narrative Reason for Discharge:   
Authority for Discharge:   MILPERSMAN 

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

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	19940628 - 19940725  	Active:	

Period of Service Under Review: 
Date of Current Enlistment:  19940726	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  19980130	Highest Rank/Rate:  ABEAN
Length of Service:   Year(s)     Month(s)   05 Day(s)
Education Level:  	AFQT:  43
Evaluation Marks:	Performance:  2.7 (3)	Behavior:  2.0 (3)	OTA:  2.50

Awards and Decorations (per DD 214):	    (2)    (2)

Periods of UA/CONF:  UA:  19971215-19971219, 5 days / CONF:  

NJP:  

- 19961114:	Article  (Absence without leave – failure to go to appointed place of duty) 3 specifications
	Article  (Failure to obey order or regulation)
	Article  (Larceny and wrongful appropriation)
	Article  (Assault)
	Article 134 (General article) 3 specifications 
	Specification 1: Communicate a threat
	Specification 2: Wrongful appropriation
	Specification 3: Wrongfully possess an ID card
	Awarded:     Suspended:  

- 19970908:	Article  (Absence without leave) 6 specifications
	Specification 1: 0700-1940, 19970709
	Specification 2: 0630, 19970710 until 0815, 19970716, 6 days
	Specification 3: 0640-0805, 19970717
	Specification 4: 0630, 19970803 until 0630, 19970804, 1 day
	Specification 5:0630-1130, 19970805
	Specification 6: 0830-0915, 19970829
	Article  (Failure to obey order or regulation)
	Awarded:    Suspended:  

- 19980108:	Article  (Absence without leave) 2 specifications
	Awarded:    Suspended:  

SCM:  	SPCM:  	CC:  

Retention Warning Counseling:  

- 19961217:	For failure to go to appointed place of duty, violate a lawful general order, larceny and communicating a threat.

NDRB Documentary Review Conducted (date):	20130529
NDRB Documentary Review Docket Number:	ND13-00532
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:

	  “”
	  “MILPERSMAN 1910-140”
	  “TL: 97JUL10-97JUL15; 97AUG03; 97DEC15-97DEC19”

The NDRB will recommend to the Commander, Navy Personnel Command, PERS-312A, 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:	

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until 19 May 2008, 
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 II, Para 211, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity.

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

Applicant’s Issues

1.	The Applicant contends that his discharge was inequitable because his undiagnosed in-service PTSD was a mitigating and contributory factor to his misconduct.
2.    The Applicant contends that his discharge was inequitable because there is substantial doubt that he would receive the same discharge with current policies, screening, and treatment for PTSD.  
3.    The Applicant contends that his discharge is inequitable because his post-service conduct demonstrates that his in-service conduct was not indicative of his overall character.   

Decision

Date:  20141212		Location:  Washington D.C.	Representation:  

Pending results of hearing.

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

Discussion

As a result of the Applicant’s claim of PTSD or TBI, in accordance with U.S. Code, Title X, Section 1553 (d)(1), the Naval Discharge Review Board 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 stated he was diagnosed with PTSD related to his combat support service aboard the USS THEODORE ROOSEVELT during Operation DELIBERATE FORCE in Bosnia-Herzegovina.  The Applicant’s service record documents his participation aboard the USS THEODORE ROOSEVELT in Operation DELIBERATE FORCE from 26 May 1995 to September 1995.  
 
The 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  NAVPERS 1070/613 (Page 13) warnings,   for  of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, 9 specifications), Article 92 (Failure to obey order or regulation, 2 specification), Article 121 (Larceny and wrongful appropriation, 1 specification), Article 128 (Assault, 1 specification), and Article 134 (General article, 3 specifications).  Based on the offense(s) committed by the Applicant,  command administratively processed  for separation.  The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived  rights to consult with a qualified counsel, submit a written statement, and request an administrative board.  However, the Applicant’s separation code of GKA on his form DD214 indicates that he appeared before and administrative separation board.  
 
:  (Decisional) ()  .  The Applicant contends that his discharge was inequitable because his undiagnosed in-service PTSD was a mitigating and contributory factor to his misconduct.  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.  The NDRB requested the Applicant’s medical treatment records, but the VA was unable to locate them.  The Applicant submitted documentation from a Licensed Clinical Social Worker at the Harford Vet Center stating that he has been receiving treatment for undiagnosed PTSD since June 2010.  The Applicant also submits documentation from the Social Security Administration stating that he has severe impairments due to: post-traumatic stress disorder, asthma, back pain, depression, and polysubstance abuse in remission.  However, though the Applicant may feel that PTSD was the underlying cause of his misconduct, the record reflects willful misconduct that demonstrated he was unfit for further service.  The evidence of record did not show that the PTSD was a sufficient mitigating factor to excuse the Applicant’s conduct or accountability concerning his actions.  After an exhaustive review, the NDRB determined that PTSD did not mitigate the Applicant’s misconduct.   

When asked about the events that started his mental health downfall, the Applicant talked about events that happened onboard the USS THEODORE ROOSEVELT on August 7 and August 9, 1996.  Although he did not have any NJPs until after these events, the Applicant had already received a promotion recommendation of progressing on his 96JAN16 to 96JUL15 Evaluation Report & Counseling Record.   Out of 36 Sailors being evaluated, he was one of two that received a promotion recommendation of progressing, which is a below standard evaluation.  Therefore, this evaluation is evidence that the Applicant already had problems meeting the standard.  Furthermore, the Applicant stated to the Board that he was seen on more than one occasion for in-service behavior by medical professionals with no finding of mental stressors causing his misconduct.  On the Applicant’s separation physical dated 30JAN98, he did state that he was having difficulty sleeping with no amplifying information, but stated that he was in good health.  The NDRB found that the misconduct committed by the Applicant were all conscious decisions to violate the tenants of honorable and faithful service.  After an exhaustive review, a preponderance of the evidence supports the conclusion that the Applicant committed a pattern of misconduct, that separation from the Naval Service was appropriate, and that an Under Other Than Honorable Conditions discharge was warranted.  Relief denied

:  (Decisional) ()  .  The Applicant contends that his discharge was inequitable because there is substantial doubt that he would receive the same discharge with current policies, screening, and treatment for PTSD. The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service.  Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy.   

Although the Navy did not adopt a screening specifically for PTSD until after the Applicant was discharge, there were still services available for members who were having issues dealing with stress.  At the time of discharge, there is no evidence in the record, nor did the Applicant provide any evidence to indicate he attempted to utilize the numerous services available for service members who undergo personal problems during their enlistment such as the Navy Chaplain, Medical or Mental Health professionals, Navy Relief Society, Family Advocacy Programs, or even the Red Cross prior to the misconduct.  On the contrary, it appears that he was sent to the hospital by his command on more than one occasion to see if he was having any mitigating mental circumstances to his misconduct.  This confirmed there were not any diagnosed stressors that would act as mitigation to his misconduct.  Even if the Applicant would have reached out for help and been diagnosed with a mental health issue, it still does not completely exonerate him from his misconduct.  Furthermore, although not in the official record, the Applicant’s discharge code of GKA indicates that he was discharge after having an administrative separation board.  The Applicant, along with his military appointed counsel, would have been able to present matters of mitigation to an administrative separation board requesting a more favorable characterization of service.  The NDRB determined that the discharge was proper and equitable and an upgrade would be inappropriate.  Relief denied     

:  (Decisional) ()  .  The Applicant contends that his discharge is inequitable because his post-service conduct demonstrates that his in-service conduct was not indicative of his overall character.  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.  The Applicant provided three letters of support, his driver’s license, copies of his two daughter’s birth certificates, three letters of community service, documentation of enrollment in an upcoming college course, four certificates of recognition all dated 2012 May 18, and some photographs.  The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum; however, completion of these items alone 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 establishes that the in-service misconduct was an aberration.  To warrant an upgrade, the Applicant’s post-service efforts need to be more encompassing.  The Board determined that the documentation submitted by the Applicant does not demonstrate if in-service misconduct was an aberration.  The characterization of service received was appropriate considering the length of service and UCMJ violations.  Relief denied.
    
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   Therefore, the awarded characterization of service shall   and the narrative reason for separation shall remain .  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.  Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm.  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 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:  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  Only the BCNR can make changes to reenlistment codes.  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