Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: Roberts, James A CIV SECNAVCORB, NDRB
Company: NCPB

Docket No. ND15-01364

ex-AMAR, USN

Current Discharge and Applicant’s Request

Application Received: 20150707
Characterization of Service Received:  (per DD 214) GENERAL (UNDER HONORABLE CONDITIONS)
Narrative Reason for Discharge:  (per DD 214) PATTERN OF MISCONDUCT
Reenlistment Code:  RE-4
Authority for Discharge:  (per DD 214) MILPERSMAN 1910-140 [PATTERN OF MISCONDUCT]

Applicant’s Request:	Characterization change to:	HONORABLE
	Narrative Reason change to:	NONE REQUESTED

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	20040625 - 20040728  COG	Active:	NONE

Period of Service Under Review:

Date of Current Enlistment:  20040729	Age at Enlistment:  18
Period of Enlistment:  4 Years  12 MONTHS Extension 
Date of Discharge:  20070228	Highest Rank/Rate:  AMAN
Length of Service:  02 Year(s)   07  Month(s)   00 Day(s)
Education Level:  12	AFQT:  54
Evaluation Marks:	Performance:  3.6 (5)	Behavior:  3.2 (5)	OTA:  3.36

Awards and Decorations (per DD 214):	NDSM

Periods of CONF:  UNABLE TO DETERMINE

NJP:  3

- 20050420:	Article 86 (Absence without leave; 20050310-20050322, 12 days)
	Awarded: RIR FOP RESTR  Suspended:  RIR FOP RESTR

- 20070109:	Article 111 (Drunken or reckless operation of a vehicle)
	Awarded: RIR FOP RESTR EPD  Suspended:  FOP RESTR EPD RIR (Vacated on 20070223)

- 20070223:	Article86 (Absence without leave) 2 specifications
	Awarded: RIR  Suspended:  NONE

SCM:  NONE

SPCM:  NONE

CIVIL ARREST:  2

- 20070108:	Charges:  Driving Under the Influence; Vehicle Accident
	[Extracted from OPNAV 5527/2, Voluntary Statement, dated 20070109]

- 20070222:	Charges:  From Virginia Beach Police Department:  (1) Robery armed parking lot mob 120A, (2) Weapon law, shooting in a vehicle 520G
	[Extracted from Incident Report, Public Copy, provided by Applicant to NDRB]

CC:  NFIR

Retention Warning Counseling:  2

- 20050420:	For violations of the UCMJ, Article 86

- 20070109:	For serious problem with driving under the influence of alcohol

NDRB Documentary Review Conducted (date):	20080228
NDRB Documentary Review Docket Number:	ND08-00266
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:	☐

Types of Witnesses Who Testified

	Expert:	☐	Character:	☐

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 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.	The Applicant contends his post-traumatic stress disorder (PTSD) was a mitigating factor in his misconduct.
2.	The Applicant contends his being a victim of a military sexual assault was a mitigating factor in his misconduct.
3.	The Applicant contends that his in-service achievements merit consideration for an upgrade.
4.	The Applicant contends that his new command did not equitably consider his individual circumstances in his discharge process.
5.	The Applicant implies that his post-service conduct warrants consideration for an upgrade.

Decision

Date:  20160208	DOCUMENTARY REVIEW	Location:  Washington D.C.	Representation:  NONE

By a vote of 5-0 the Characterization shall remain GENERAL (UNDER HONORABLE CONDITIONS).
By a vote of 5-0 the Narrative Reason shall remain PATTERN OF MISCONDUCT.

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 his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included two NAVPERS 1070/613 (Page 13) warnings, three nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, three specifications) and Article 111 (Drunken or reckless operation of a vehicle, one specification), and two civil arrests for driving under the influence resulting in a vehicular accident, robbery armed parking lot, and shooting in a vehicle.  Based on the offense(s) committed by the Applicant, his command administratively processed him for separation.  When notified of administrative separation processing using the notification procedure, the Applicant waived his rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review.

As a result of the Applicant’s claim of PTSD, 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 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 PTSD.  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).  As a result of the Applicant’s newly submitted claim of service related PTSD and sexual assault, the President of the NDRB decided to allow a second documentary review of the Applicant’s case.  The Applicant’s in-service medical records are void of any diagnosis of PTSD; however, the Applicant was diagnosed with alcohol abuse, parent-child relational problems, bereavement, and abandonment issues.

Issue 1:  (Decisional) (Equity) RELIEF NOT WARRANTED.  The Applicant contends his post-traumatic stress disorder (PTSD) was a mitigating factor in 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 records from the Department of Veterans Affairs (VA) and the records provided by the VA do not annotate any mental health concerns outside of alcohol abuse, parent-child relational problems, bereavement, and abandonment issues.  The NDRB noted that the Applicant provided documentation on 23 June 2015 showing he requested the VA provide a letter to this board supporting his discharge upgrade, diagnosis, treatment history, and psychosocial history.  The VA response provided by the Applicant to this board consisted of a one page letter dated 22 June 2015 documenting the Applicant’s name change, PTSD diagnosis, and treatment history beginning in 2012.  This post-service mental health evaluation and diagnosis of PTSD was conducted more than five years after the Applicant’s separation, which the NDRB determined was too long a period to have relevance on his in-service misconduct and was not contained within the official records provided to this board by the VA on 21 January 2016.  
The sole piece of documentation for this diagnosis provided by the Applicant states that his PTSD “occurred secondary to experiences that occurred while on active duty in the Navy as well as from childhood experiences.”  The NDRB found no mention of childhood mental health traumas in the Applicant’s pre-enlistment eligibility screening documentation.  The Applicant’s service record is void of documentation of combat involvement, deployments, or in-service traumatic events.  Furthermore, there is no evidence in the record, nor did the Applicant provide any documentation, to indicate he attempted to use the numerous services available for service members who undergo personal problems or mental health crises during their enlistment, such as the Navy Chaplain, Medical or Mental Health professionals, Navy Relief Society, Family Advocacy Programs, or even the Red Cross until after all of his documented misconduct had occurred.  After an exhaustive review, the NDRB determined that neither the Applicant’s post-service diagnosis of PTSD nor his in-service mental health diagnoses mitigate the Applicant’s in-service misconduct.  Three different periods of absence without leave, driving under the influence of alcohol, and civil arrests for armed robbery and shooting in a vehicle were all conscious decisions to violate the tenants of honorable and faithful service with no or limited nexus to PTSD.  Relief denied.

Issue 2:  (Decisional) (Equity) RELIEF NOT WARRANTED.  The Applicant contends his being a victim of a military sexual assault was a mitigating factor in his misconduct.  The NDRB conducted an exhaustive review of the Applicant’s records and found no evidence of such an event occurring or documentation of the Applicant using available counseling services to support this claim.  Statements alone, without sufficient documentary evidence, are not enough for the NDRB to form a basis of relief.  Relief denied.

Issue 3:  (Decisional) (Equity) RELIEF NOT WARRANTED.  The Applicant contends that his in-service achievements merit consideration for an upgrade.  The Applicant was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation.  The characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation.  Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition.  Based on the Applicant’s record of service, the NDRB determined the Applicant’s service was honest and faithful but significant negative aspects of his conduct or performance of duty outweighed the positive aspects of his service record, and the awarded characterization of service was warranted.  Relief denied.

Issue4:  (Decisional) (Equity) RELIEF NOT WARRANTED.  The Applicant contends that his new command did not equitably consider his individual circumstances in his discharge process.  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 his command did not equitably consider the circumstances surrounding his discharge.  

In reviewing the propriety of the Applicant’s discharge, the NDRB noted that service members may be separated for a pattern of misconduct when during the current enlistment they have two or more nonjudicial punishments (NJP), court-martial, or civil convictions (or combination thereof).  The Applicant’s service record clearly demonstrates his misconduct exceeded the standard set forth to warrant an administrative separation under the conditions required for a pattern of misconduct discharge.  
Furthermore, the record clearly shows on 26 February 2007, when given the opportunity to exercise his rights during separations proceedings, the Applicant expressly chose not to exercise his rights to consult with counsel, provide a written statement, or appeal to the separation authority.  

In reviewing the Applicant’s contentions as presented in his written statement to this board, the NDRB annotated several discrepancies which were unable to be resolved by the documentation provided by the Applicant and the evidence of record.  These discrepancies included questions surrounding the Applicant’s reporting of his older brother’s death in 2005 being the cause of his PTSD and NJP related to absence without leave charges in April 2005 and his later assertions that his older brother was a career criminal that was incarcerated on 17 September 2008 under the Applicant’s name by the state of Michigan due to attempted possession of controlled substances.  The NDRB was unable to determine if the Applicant had one or more older brothers due to the generality in reference as only “older brother.”  The board found further discrepancy in the record concerning the Applicant’s absence without leave charges on 23 February 2007 in that his Disciplinary Review Board (DRB) for that offense records his stating that he had over indulged the night before and had therefore overslept.  The record also shows the Applicant was counseled concerning a similar issue the day prior as well.  The Applicant presented a police report to this board citing his absence without leave was caused by his arrest by the Virginia Beach Police Department for armed robbery and shooting in a vehicle.  The Applicant’s written contention to the NDRB was that these charges were dropped as erroneous; however, the documentation only shows these charges were filed against him.  

Regardless of the discrepancies between the Applicant’s statement, provided documentary evidence, and the evidence in the record, the fact remains that the Applicant was found guilty at NJP three times and had two retention warning counseling statements within his service record.  The record of evidence clearly shows the Applicant waived his rights to trial by court-martial and an administrative separation board.  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’s statements alone do not overcome the government’s presumption of regularity in this case.  Relief denied.

Issue5:  (Decisional) (Equity) RELIEF NOT WARRANTED.  The Applicant implies that his post-service conduct 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 a personal statement and a letter from a Department of Veterans Affairs clinical psychologist, and three court and legal documents.  The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum, knowing that 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.  The Board determined that the documentation submitted by the Applicant does not merit a change to his discharge characterization.  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, medical and service record entries, and discharge process, the Board found the discharge was proper and equitable.  Therefore, the awarded characterization of service shall remain GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain PATTERN OF MISCONDUCT.

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

Key:	NFIR - Not found in record 	RESTR - Restriction	NJP - Nonjudicial punishment	SCM - Summary court-martial
	SPCM - Special court-martial	FOP - Forfeiture of pay	RIR - Reduction in rank	EPD - Extra duties
	CONF - Confinement	CC - Civilian conviction	CCU - Correctional Custody Unit	CBW - Confinement on bread and water

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Nonjudicial punishment	SCM – Summary court-martial	
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties 
	CONF – Confinement		B&W – Confinement on bread and water