ex-GM2, USN

Current Discharge and Applicant’s Request

Application Received: 20150702
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)	20040525 - 20041004  	Active:		20041005 - 20121108  

Period of Service Under Review:

Date of Current Enlistment:  20121109	Age at Enlistment:  
Period of Enlistment:   Years   Extension 
Date of Discharge:  20140805	Highest Rank/Rate:  GM2
Length of Service:   Year(s)     Month(s)   26 Day(s)
Education Level:  	AFQT:  81
Evaluation Marks:	Performance:  3.3 (3)	Behavior:  3.3 (3)	OTA:  3.33

Awards and Decorations (per DD 214):	Rifle  Pistol   (3)    (2) 

Periods of UA/CONF:  

NJP:  	

SCM:  	

SPCM:  	

CC:  	

Retention Warning Counseling:  

NDRB Documentary Review Conducted (date):	20150416
NDRB Documentary Review Docket Number:	ND15-00384
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:

	  “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 041005 UNTIL 121108”

The NDRB will recommend to the Commander, Navy Personnel Command, 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:	

Types of Witnesses Who Testified

	Expert:		Character:	

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 31 May 2005 until Present, 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.

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

Applicant’s Issues

1.	The Applicant contends his discharge is inequitable because it was based on one isolated incident in his ten years of service with no other adverse action.
2.	The Applicant contends his discharge is inequitable because of gross misconduct of his chain of command at his work center leading to his type of discharge.
3.	The Applicant contends his discharge is inequitable because of his numerous attempts under honorable conditions to separate from the military were mishandled, manipulated, and stopped by his senior divisional leadership.  In other words, his requests to separate under honorable conditions were never allowed to be submitted to the appropriate authorities.
4.	The Applicant implies his post-service accomplishments, to include his maintenance of a 4.0 GPA during his first semester to college, warrants consideration for an upgrade.
5.	(Board Issue) The Applicant implies his discharge is inequitable because he was innocent of the accusations against him.

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 no NAVPERS 1070/613 (Page 13) warnings and no misconduct resulting in nonjudicial punishment or court-martial.  On 31 July 2014, the Applicant submitted his request for separation in lieu of trail 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.

A documentary review of this case was previously conducted on 16 April 2015 resulting in a unanimous decision to not change the Applicant’s discharge characterization or narrative reason for separation based upon the evidence of the record and the documentation presented by the Applicant at the time of the review.  Since this review was conducted, the Applicant has submitted 381pages of additional documentation on 27 May 2015 and 2 July 2015 as well as an additional written statement on 30 October 2015.  The NDRB noted the Applicant submitted this material citing having sent “approximately 500 pages” of additional documentation.  Regardless, this additional material included documentation submitted on earlier dates in support of other benefits related petitions he has filed.  Upon receiving this volume of additional documentation so shortly after the NDRB’s documentary review of his case and due to newly discovered indications that the Applicant was diagnosed with a mental health condition while on active duty, the NDRB granted an additional documentary review before referring the Applicant to a personal appearance hearing to further present his case.

As a result of the Applicant’s in-service diagnoses of bipolar disorder, adjustment disorder, and personality disorder, and in accordance with U.S. Code, Title X, Section 1553 (e)(2), the Naval Discharge Review Board included a member who is a clinical psychologist or psychiatrist, or a physician with special training on mental health disorders.  The Applicant’s mental health conditions were partially documented in his counsel’s statement regarding his request for separation in lieu of court-martial and mental health treatment notes provided by the Applicant after his initial documentary review.  This information was previously unknown to the NDRB in evaluating the Applicant’s case.  The NDRB also noted the Applicant received an enlistment waiver for his pre-service diagnosis of Attention Deficit Disorder (ADD) with Ritalin use.

:  (Decisional) ()  .  The Applicant contends his discharge is inequitable because it was based on one isolated incident in his ten years of service with no other adverse action.  The NDRB found that the additional material provided by the Applicant does not alter this Board’s decision to not upgrade his discharge based upon this issue.  The NDRB’s decision stands as written on 16 April 2015.  Relief denied.

:  (Decisional) ()  .  The Applicant contends his discharge is inequitable because of gross misconduct of his chain of command at his work center leading to his type of discharge.  The NDRB found that the additional material provided by the Applicant does not alter this Board’s decision to not upgrade his discharge based upon this issue.  The NDRB’s decision stands as written on 16 April 2015.  Relief denied.

:  (Decisional) ()  .  The Applicant contends his discharge is inequitable because of his numerous attempts under honorable conditions to separate from the military were mishandled, manipulated, and stopped by his senior divisional leadership.  In other words, his requests to separate under honorable conditions were never allowed to be submitted to the appropriate authorities.  With respect to this issue the NDRB reviewed material submitted by the Applicant showing he attempted to be separated from the Navy due to either a hardship discharge to assist his aging father on his farm or gain a medical retirement based upon a foot injury sustained in unit physical training.

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 found several factual inconsistencies in narrative and issues statements provided by the Applicant.  As examples he stated he was processing for a hardship discharge to help take care of father but was at least initially applying for employment away from him.  He further claimed that his leadership was not routing his hardship discharge package while also stating that he continued to work on it.  This implies that he had not yet provided his leadership with a complete package to route.  The NDRB also found the Applicant’s statements and documentation showing he was requesting a medical separation to be in conflict with statements in his narratives that he was also applying to go “blue to green” in order to become a Green Beret.

When reviewing a discharge, the NDRB considers 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 physical and mental health conditions and diagnoses to be of sufficient nature to excuse the Applicant’s misconduct.  Furthermore, Department of Defense regulations provide that disciplinary separations supersede disability separations.  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.

Initially, the NDRB did not find any reference of a mental health diagnosis in the Applicant’s service record to support his claim; however the Applicant provided documentary evidence of his medical diagnoses by competent medical authorities to support his claims.  Additionally, when the NDRB pulled the Applicant’s service record for this review it revealed diagnoses of adjustment and personality disorder in his defense counsel’s statement regarding his request for separation in lieu of court-martial.  Available medical records screened also showed an in-service diagnosis of bipolar disorder by a qualified medical practitioner.

Though the Applicant provided documentation of in-service diagnoses of adjustment disorder and personality disorder and the available medical records contained a bipolar disorder diagnosis, the record reflects willful misconduct that demonstrated he was unfit for further service.  The evidence of record did not show that bipolar disorder, adjustment disorder, or personality disorder were sufficient mitigating factor to excuse the Applicant’s conduct or accountability concerning his actions.  After an exhaustive review, the NDRB determined that the mental health diagnoses contained in his documentary evidence did not mitigate the Applicant’s misconduct.  The charges against the Applicant at the time of his SILT, which resulted in arrest and confinement, were all conscious decisions to violate the tenants of honorable and faithful service.

Regardless of the status of any other discharge package having been submitted by the Applicant, appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  In several of the various and slightly different narratives provided by the Applicant, he attempts to rebut the government’s argument at the time of his separation by stating “…I have an AR15, SIG 226, tactical assault gear, and 1,500 rounds of ammo at home…”.  The NDRB does not find this as compelling evidence, in concert with the assault he committed while trying to gain entry to a newly prohibited space utilizing his crutches and a backpack, that the firearm and ammunition in his backpack, on base, therefore did not constitute a misconduct event.  The NDRB noted that the personal effects inventory provided by the Applicant of his room and personal locker did not include the weapon(s) cited in his numerous statements or the backpack he claims to have stored at least one of them in.  The NDRB did note that the Applicant’s pre-arrest altercation indicated that he had a backpack with him at the time.  The NDRB also noted that paragraph six of the Applicant’s request for a SILT included a stipulation requiring him to turn over all firearms, to include those in the custody of the Great Lakes Police Department.  The inference exists that the Applicant had a firearm or firearms available at the time of his arrest and the evidence of record and documentation provided by the Applicant shows that the firearm or those firearms were not securely stored in the Applicant’s room or personal locker at the time of his final altercation and arrest.

Finally, a comprehensive review of the Applicant’s record of service and his SILT package reveals he was scheduled to appear before a SPCM to face charges that included violations of the UCMJ Articles 86, 92, and 128.  The record shows the Applicant was not taken to court-martial but was administratively separated from the Marine Corps after requesting a SILT.  The Applicant’s command did not force him to enter into a SILT; supported by the documentation provided by the Applicant showing his pre-trial confinement was in the hands of civil authorities.  Per regulations, to attain approval for a SILT request, servicemembers must have been afforded the opportunity to consult with a qualified counsel and submit a written statement.  They must also fully understand the elements of the offense(s) for which they were charged, and they must admit their guilt.  They further certify a complete understanding of the negative consequences of their actions and that characterization of service could be Under Other Than Honorable Conditions, which might deprive them of virtually all veterans benefits based upon their current enlistment.  The NDRB ultimately found this issue to be without merit after an exhaustive review of all available materials.  Relief denied. 

4:  (Decisional) ()  .  The Applicant implies his post-service accomplishments, to include his maintenance of a 4.0 GPA during his first semester to college, warrants consideration for 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 several lengthy personal statements, four reference letters from professors, and a President’s List certificate from the Asheville-Buncombe Technical Community College for earning a 4.0 GPA in the Spring 2015 semester.  However, post-service conduct 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 provides a basis for a more thorough understanding of the performance of the applicant during the period of service that is the subject of the discharge review.  The Board determined that the characterization of service received was appropriate considering the length of service and UCMJ violations after considering his post-service documentary evidence.  Relief denied.

5:  (Decisional) (Board Issue) ()  .  The Applicant implies his discharge is inequitable because he was innocent of the accusations against him.  The record of evidence clearly shows the Applicant waived his rights to trial by court-martial and an administrative separation board.  On 31 July 2014, 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.  If the Applicant felt he was mistakenly charged with a crime, it was his obligation to contest those charges at the time they were made.  During a trial or administrative separation board, he would have had the opportunity to mount a defense against the charges.  The Applicant submitted no evidence to support his contention; therefore, the NDRB must rely upon the presumption of regularity in the conduct of Government affairs.  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 remains eligible for a personal appearance hearing for a period of fifteen years from the date of  discharge.  The Applicant is not eligible for any further documentary reviews by this board.  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