ex-MMFA, USN

Current Discharge and Applicant’s Request

Application Received: 20140910
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)	19990909 - 19991027  	Active:	

Period of Service Under Review:

Date of Current Enlistment:  19991028	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20011114	Highest Rank/Rate:  MMFA
Length of Service:   Year(s)     Month(s)   18 Day(s)
Education Level:  	AFQT:  91
Evaluation Marks:	Performance:  NFIR	Behavior:  NFIR	OTA:  NFIR

Awards and Decorations (per DD 214):	NONE

Period of UA: 20000501-20011013, 531 days; CONF:  

NJP:    (Applicant’s written statement claims he received Captain’s Mast for being UA for a two week period)

SCM:    SPCM:    CC:    Retention Warning Counseling:   

NDRB Documentary Review Conducted (date):	20130613
NDRB Documentary Review Docket Number:	ND12-01960
NDRB Documentary Review Findings:		Proper as issued and that no change is warranted.

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 29, effective 11 July 2000 until 
21 August 2002, Article 1910-106, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

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)(b), Presumption Concerning Court-Martial Specifications.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications.

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

Applicant’s Issues

1.	The Applicant contends he did not receive appropriate representation.
2.	The Applicant contends he did not receive proper Basic training, was not in the proper Basic training environment, and would not be allowed into basic training by today’s standards.  
3.	The Applicant contends a doctor gave him orders for R&R after being diagnosed with sleep pattern disturbances and depression but his command gave him extra duties instead.
4.	The Applicant contends his Adjustment Disorder, Depression, and substance abuse are similar to PTSD like symptoms and warrant mitigation. 
5.	The Applicant contends his post-service conduct warrants an upgrade.

Decision

Date:  20150409		Location:  Washington D.C.	Representation:  

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 like symptoms, in accordance with U.S. Code, Title X, Section 1553(d)(1), the Naval Discharge Review Board reviewed the Applicant's record to see if he deployed in support of a contingency operation and was, as a consequence of that deployment, diagnosed with either PTSD or TBI.  A review of his record revealed that he did not deploy in support of a contingency operation, and so his case did not warrant an expedited review 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.  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 Applicant’s record of service included no NAVPERS 1070/613 (Page 13) warnings and no misconduct resulting in nonjudicial punishment (NJP) or court-martial.  However, the record reflects the Applicant had a period of unauthorized absence (UA) of 531 days and the Applicant submitted a written statement that implies he had one NJP for a previous UA period.  Likewise, the Applicant’s medical record annotates that the Applicant had a previous period of UA of 10 days and that he used cannabis while UA.  On 23 October 2001, the Applicant submitted his request for separation in lieu of trial by court-martial (SILT).  In the request for discharge, the Applicant noted that his counsel had fully explained the elements of the offenses for which he was charged and that he was guilty of those offenses.  He certified a complete understanding of the negative consequences of his actions and that characterization of service could be Under Other Than Honorable Conditions, which might deprive him of virtually all veterans benefits based upon his current enlistment. 

:  (Decisional) ()  .  The Applicant contends he did not receive appropriate representation.  The Applicant further contends he was not granted any leniency.  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.  Other than the Applicant’s statement indicating he did not receive appropriate representation, he provided no evidence and his statement alone is not enough to refute the presumption of regularity.  The record shows the Applicant had a period of unauthorized absence of 531 days and that the charges were referred to a special court-martial.  The maximum punishment for this offense if adjudicated at a special court-martial is a Bad Conduct Discharge (BCD) and confinement up to one year.  Additionally, a special court-martial conviction would result in a felony conviction record.  It is not uncommon for this level of misconduct to lead to a punitive discharge.  In order to avoid a special court-martial and its potential consequences, the Applicant submitted a request for SILT.  In the SILT request, the Applicant stated he fully understood the elements of the offense charge and voluntarily submitted the request free from any duress.  Per the Naval Military Personnel Manual (MILPERSMAN	), the Convening Authority determines characterization of service, which is normally Under Other Than Honorable Conditions for SILT; however, a General (Under Honorable Conditions) may be assigned.  Due to the severity of the Applicant’s misconduct and the fact that the charges were already referred to a special court-martial, a characterization of General (Under Honorable Conditions) would be highly unusual.  Based on the severity of the Applicant’s misconduct and evidence of record; the NDRB determined that the Convening Authority granted substantial leniency in accepting the Applicant’s SILT vice pursuing a BCD and potential confinement.  The NDRB determined that the Applicant’s contention was without merit.  Relief denied.

:  (Decisional) ()  .  The Applicant contends he did not receive proper Basic training, was not in the proper Basic training environment, and would not be allowed into basic training by today’s standards.  The Applicant’s contention is primarily based on his lack of a GED or high school diploma prior to his enlistment.  The NDRB discerned no impropriety in the Applicant’s recruitment or training.  Notwithstanding, when reviewing a discharge, the NDRB does consider the Applicant’s aptitude in which it may affect his performance and ability to conform to the military’s standards of conduct and discipline.  However, the NDRB does not consider the circumstances surrounding the Applicant’s contention to be of sufficient nature to excuse the Applicant’s misconduct.  Relief denied. 

:  (Decisional) ()  .  The Applicant contends a doctor gave him orders for R&R after being diagnosed with sleep pattern disturbances and depression but his command gave him extra duties instead.  The NDRB determined that the record of evidence does not support the Applicant’s contention that his command acted improperly.  Regardless, the record shows the Applicant waived his rights to trial by court-martial and submitted a request for SILT in order to avoid a special court-martial.  If the Applicant felt there were mitigating circumstances to his misconduct, it was his obligation to contest those charges at the time they were made.  During a trial, he would have had the opportunity to bring forth any mitigating circumstances.  Nevertheless, when reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline.  However, the NDRB does not consider the circumstances surrounding the Applicant’s stated condition or diagnosis to be of sufficient nature to excuse the Applicant’s misconduct.  Relief denied.

4:  (Decisional) ()  .  The Applicant contends his Adjustment Disorder, Depression, and substance abuse are similar to PTSD like symptoms and warrant mitigation.  The NDRB found no evidence that the Applicant was diagnosed with PTSD.  However, the record does show that the Applicant was diagnosed with Adjustment Disorder with Depressed Mood and Alcohol Abuse on or about April 2000.  When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline.  However, the NDRB does not consider the circumstances surrounding the Applicant’s stated condition or diagnosis to be of sufficient nature to excuse the Applicant’s misconduct.  Though the Applicant may feel that his Adjustment Disorder, Depression, substance abuse, and “PTSD like” symptoms were 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 medical conditions were sufficient mitigating factors to excuse the Applicant’s conduct or accountability concerning his actions.  After an exhaustive review, the NDRB determined that his “PTSD like” symptoms and his other medical condition do not mitigate the Applicant’s misconduct.  Relief denied 

5:  (Decisional) ()  .  The Applicant contends his post-service conduct warrants an upgrade.  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 a documented history of his post-service conduct.  However, post-service conduct alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis.  The Board determined that the documentation submitted by the Applicant does not warrant relief.  The characterization of service received was appropriate considering the length of service and UCMJ violation.  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 remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain IN LIEU OF TRIAL BY COURT MARTIAL.  The Applicant is no longer eligible for additional reviews or hearings 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