ex-CSSN, USN

Current Discharge and Applicant’s Request

Application Received: 20150930
Characterization of Service Received:   
Narrative Reason for Discharge:   
Reenlistment Code:  
Authority for Discharge:   MILPERSMAN 

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

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	20030109 - 20030915  	Active:	

Period of Service Under Review:

Date of Current Enlistment:  20030916	Age at Enlistment:  
Period of Enlistment:   Years   Extension 
Date of Discharge:  20060315	Highest Rank/Rate:  CSSN
Length of Service:   Year(s)     Month(s)   00 Day(s)
Education Level:  	AFQT:  35
Evaluation Marks:  NFIR

Awards and Decorations (per DD 214):	Pistol   

NJP:  

- 20050812:	Article 108 (Military property of the United States—sale, loss, damage, destruction, or wrongful disposition)
	Article  2 specifications
	Article 134 (General article; disorderly conduct, drunkenness)
	Awarded:   Suspended:  

- 20050822:	Article 
	Article 
	Awarded:     Suspended:  

SCM:  	SPCM:  

CIVIL ARREST:  

- 20060120:	Charges:  Driving Under the Influence (Middletown, Rhode Island Police Department)
	[Extracted from Commanding Officer, Naval Station Newport letter dated 8 February 2006]

CC:  

- Date NFIR:	Offense:  Driving Under the Influence (Middletown, Rhode Island Police Department)
	Sentence:  Fine, court costs, mandatory enrollment in the state DUI program, 20 hours of community service, and a three month suspension of his driver’s license
	[Extracted from Commanding Officer, Naval Station Newport letter dated 8 February 2006]

Retention Warning Counseling:  

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:	

Types of Witnesses Who Testified

	Expert:		Character:	

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until 11 June 2008, 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, Article 108, 128.

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

Applicant’s Issues

1.	The Applicant requests an upgrade in order to receive service benefits to include medical care, mental health care, and vocational rehabilitation.
2.	The Applicant implies that he was treated inequitably and was separated due to an incident in which he was a victim of racism.
3.	The Applicant states that the circumstances surrounding his discharge resulted in and caused his current mental health conditions which merits consideration for an upgrade.

Decision

Date:  20160121		Location:  Washington D.C.	Representation:  

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

Discussion

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   for  of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation, one specification), Article 108 (Military property of the United States—sale, loss, damage, destruction, or wrongful disposition; one specification), Article 113 (Misbehavior of sentinel, one specification), Article 128 (Assault, two specifications), and Article 134 (General article, disorderly conduct, drunkenness; one specification).  Based on the offense(s) committed by the Applicant,  command administratively processed  for separation.  When notified of administrative separation processing using the  procedure, the Applicant waived  rights to consult with a qualified counsel, submit a written statement, and request an administrative board.

As a result of the Applicant’s claim that a mental health conditions impacted his discharge, and in accordance with U.S. Code, Title X, Sections 1553 (e)(2) and 1553 (d)(1), the Naval Discharge Review Board included a member who is a clinical psychologist or psychiatrist, or a physician with special training on mental health disorder.  The Applicant’s service record fails to document the Applicant was diagnosed with a mental health disorder while serving in the armed forces; however, the Applicant provided post service documentation from April and July 2015 stating he has Axis I diagnoses of Bipolar I Disorder, MRE Depression; Cannabis Dependence; Alcohol Dependence (reported in remission x 6 years); Post-Traumatic Stress Disorder (per client report); Attention Deficit Hyperactivity Disorder, Combined Type; and Anxiety Disorder, Not Otherwise Specified; as well as an Axis II diagnosis of Schizoid Personality Disorder.

:  (Nondecisional) The Applicant requests an upgrade in order to receive service benefits to include medical care, mental health care, and vocational rehabilitation.  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.  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.

:  (Decisional) ()  .  The Applicant implies that he was treated inequitably and was separated due to an incident in which he was a victim of racism.  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.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was wrongfully discharged or that he was the victim of racism.  In reviewing the Applicant’s claims to this board, the NDRB found documentation in his Commanding Officer’s recommendation for separation letter that stated:  “In February 2004, [the Applicant] was found to have been involved in a fight with two other sailors after consuming approximately 10 beers.  After he was detained, [the Applicant] became violent and it was necessary to employ OC Spray in order to quickly and safely subdue and restrain him.  In the process [the Applicant] spit bloody saliva into the eyes of a police officer and a firefighter.  After having a Disciplinary Review Board (DRB) in March 2004, it was recommended by the board that he seek counseling and that the case not be forwarded to Captain’s Mast.”  The NDRB found that this 2004 incident corresponded to the locations, but not the circumstances, presented by the Applicant in his application to this board.  No indications of the Applicant’s accusations were found to have been made part of the official record, although it was noted that medical documentation cited the Applicant’s intoxication and combativeness during treatment.  As such, the NDRB noted that this incident was not the casual factor in his administrative separations processing as he had two NJPs for violations of UCMJ Articles 92, 108, 113, 128, and 134 in August 2005 and a civilian DUI arrest and conviction in 2006.  Violations of UCMJ Article 92, 108, 113, and 128 are considered serious offenses for which a punitive discharge is authorized.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  A preponderance of the evidence reviewed supports the conclusion that the Applicant committed a serious offense, that separation from the Naval Service was appropriate, and that an Under Other Than Honorable Conditions discharge was warranted.  Relief denied.

:  (Decisional) ()  .  The Applicant states that the circumstances surrounding his discharge resulted in and caused his current mental health conditions which merits consideration for an upgrade.  The NDRB requested all records of medical treatment, both active duty and post-service, from the VA.  The records received from the VA and the Applicant does not show the Applicant’s current mental health diagnoses were caused by his service or provided mitigation for his misconduct.  The record of evidence shows the Applicant was provided access to resources such as his attendance of a Substance Abuse Rehabilitation Program (SARP) from 29 August until 14 September 2005 and was provided access to counselors and support services.  The NDRB found no evidence in the record of any indications of, or diagnosis for, his non-substance abuse related mental health issues in service.  After an exhaustive review the NDRB found considerable evidence of both in-service alcohol and drug abuse; specifically the Applicant’s post-service admission of using marijuana beginning approximately one year after enlistment.  Furthermore, the evidence provided by the Applicant shows his claim of PTSD seems more likely than not to relate to an accident he recalls from the age of three.  The NDRB did not find the Applicant’s claims that his arrests for misconduct caused his PTSD credible based upon the evidence of the record and documentation provided.  The NDRB concluded that relief based on this issue was not warranted.  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 .

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of  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.”

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, 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-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