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

Docket No. ND15-01493

ex-BMSN, USNR

Current Discharge and Applicant’s Request

Application Received: 20150805
Characterization of Service Received:  (per DD 214) GENERAL (UNDER HONORABLE CONDITIONS)
Narrative Reason for Discharge:  (per DD 214) MISCONDUCT (SERIOUS OFFENSE)
Reenlistment Code:  RE-4
Authority for Discharge:  (per DD 214) MILPERSMAN 1910-142 [COMMISSION OF A SERIOUS OFFENSE]

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

Summary of Service

Prior Service:
Inactive:	USAR	NFIR - 20010727  NFIR	Active:	NONE

Period of Service Under Review:

Date of Current Enlistment:  20020625	Age at Enlistment:  29
Period of Enlistment:  8 Years  NO Extension 
Date of Discharge:  20080618	Highest Rank/Rate:  BM3
Length of Service:
	Inactive:	05 Year(s)   01  Month(s)   25 Day(s)
	Active	00 Year(s)   10  Month(s)   30 Day(s)
Education Level:  NFIR	AFQT:  NFIR
Evaluation Marks:	Performance:  2.25 (4)	Behavior:  2.5 (4)	OTA:  2.63

Awards and Decorations (per DD 214):	Rifle MM Pistol MM NDSM AFRM GWOTSM GWOTEM SSDR OSR

Periods of CONF:  NONE

NJP:  1

- 20071213:	Article 86 (Absence without leave) 2 specifications
	Article 91 (Insubordinate conduct toward WO, NCO or PO) 4 specifications
	Article 92 (Failure to obey order or regulation) 2 specifications
	Awarded: RIR  Suspended:  NONE

SCM:  NONE

SPCM:  NONE

CC:  NONE

Retention Warning Counseling:  1

- 20070617:	For failure to meet physical readiness test standards

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 23, effective 12 June 2008 until 9 November 2009, 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 91, 92.

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

Applicant’s Issues

1.	The Applicant seeks educational and financial benefits.
2.	The Applicant contends the discharge was inaccurate and highly unfair considering the extreme abuse and life-threatening medical conditions that developed as a direct result of the cruel and unusual punishment and major assault which nearly cost the Applicant’s life.  The Applicant details these conditions as Traumatic Brain Injury (TBI), back and neck injury, PTSD, chronic pulmonary embolism, severe anxiety, and severe depression.
3.	The Applicant contends that discrimination played a major role in the type of discharge received as well as resulted in termination from a source of post-service employment.
4.	The Applicant contends that the commission of a serious offense was actually punishment for filing a complaint against a superior that resulted in physical injury which should therefore warrant a change in narrative reason to “due to medical reasons.”
5.	The Applicant contends the discharge was inequitable for a U.S. physician and OIF war veteran.
6.	The Applicant contends that previous reviews of this case by a Congressman and the response by a naval attorney unfairly, inaccurately, and inequitably challenged the Applicant’s motivations for enlisting in the military as a foreign physician when the Applicant is in-fact a U.S. physician.

Decision

Date:  20160121	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 MISCONDUCT (SERIOUS OFFENSE).

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 the Applicant’s discharge and the discharge process to ensure the Applicant’s discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included one NAVPERS 1070/613 (Page 13) warning and one nonjudicial punishment (NJP) for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, two specifications), Article 91 (Insubordinate conduct toward WO, NCO or PO, four specifications), and Article 92 (Failure to obey order or regulation, two specifications).  Based on the offense(s) committed by the Applicant, the command administratively processed the Applicant for separation.  The NDRB did not have the Applicant’s complete administrative separation package to determine whether or not the Applicant waived the right to consult with a qualified counsel, submit a written statement, and request an administrative board.  However, per the Applicants DD Form 214, the Separation Code HKQ indicates the Applicant waived the right to an administrative board.

As a result of the Applicant’s claim of PTSD and 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 implies a diagnosis of PTSD related to combat service in Iraq and a personal assault against him while deployed.  The Applicant’s service record documents a period of activation and deployment to Kuwait during the Applicant’s final period of active service beginning approximately 31 August 2007 and lasting to approximately 18 June 2008.  The exact dates of the Applicant’s deployment conducting combat service support operations in support of Operation IRAQI FREEDOM were not found in the record; however the record indicates the Applicant may have begun duty in Kuwait as early as 3 November 2007.  A detail review of the record and the material submitted by the Applicant reveal diagnoses of adjustment disorder, acute stress disorder, and anxiety disorder while in-service and no diagnoses of PTSD or TBI.  As a result of the Applicant’s actual mental health diagnoses, and in accordance with U.S. Code, Title X, Section 1553 (e)(2), the Naval Discharge Review Board retained a member who is a clinical psychologist or psychiatrist, or a physician with special training on mental health disorder.

Issue 1:  (Nondecisional) The Applicant seeks educational and financial benefits.  The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing 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.

Issue 2:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends the discharge was inaccurate and highly unfair considering the extreme abuse and life-threatening medical conditions that developed as a direct result of the cruel and unusual punishment and major assault which nearly cost the Applicant’s life.  The Applicant details these conditions as Traumatic Brain Injury (TBI), back and neck injury, PTSD, chronic pulmonary embolism, severe anxiety, and severe depression.  Statements alone, without sufficient documentary evidence, are not enough for the NDRB to form a basis of relief.  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 the issues.  The NDRB requested the Applicant’s medical treatment records, but the VA was unable to locate them.  Furthermore, the NDRB did not find any reference to a medical diagnosis of PTSD in the Applicant’s service record to support the claims, and the Applicant did not provide any documentary evidence of a medical diagnosis by competent medical authorities to support the claims.  Though the Applicant may feel that PTSD was the underlying cause of the misconduct, the record reflects willful misconduct that demonstrated the Applicant was unfit for further service.  The evidence of record did not show that the PTSD, TBI, or any of the actual in-service mental health diagnoses were a sufficient mitigating factor to excuse the Applicant’s conduct or accountability concerning the documented in-service misconduct.  After an exhaustive review, the NDRB determined that mental health issues did not mitigate the Applicant’s misconduct.  Relief denied.

Issue 3:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends that discrimination played a major role in the type of discharge received as well as resulted in termination from a source of post-service employment.  Statements alone, without sufficient documentary evidence, are not enough for the NDRB to form a basis of relief.  Relief denied.

Issue4:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends that the commission of a serious offense was actually punishment for filing a complaint against a superior that resulted in physical injury which should therefore warrant a change in narrative reason to “due to medical reasons.”  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 Board for Correction of Naval Records (BCNR) can grant this type of narrative reason change.  If the Applicant desires a medical review a petition should be filed with the BCNR for a determination of whether the medical condition(s) or underlying diagnose(s) interfered significantly with the ability to carry out the duties of the office, grade, rank or rating held during the enlistment period.  The Applicant (using DD Form 149) may file the petition with BCNR, at 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm.

With respect to the Applicant’s implication that the discharge was being punishment for filing a complaint against a superior, statements alone, without sufficient documentary evidence, are not enough for the NDRB to form a basis of relief.  After an exhaustive review, the NDRB found no documentary evidence in the record or in the Applicant’s submission to this board to credibly support this claim.  In accordance with the MILPERSMAN, servicemembers may be separated based on the commission of a serious military or civilian offense when the commanding officer believes the specific circumstances of the offense warrant separation and the offense would warrant a punitive discharge if adjudicated at trial by court-martial for the same or closely related offense.  Commission of a serious offense does not require adjudication by nonjudicial or judicial proceedings or civilian conviction; however, the offense must be substantiated by a preponderance of evidence.  The statements and documents provided by the Applicant do not refute the presumption of regularity in this case.  The Applicant was provided the opportunity to present his case before an administrative board, but waived that right, thus accepting the discharge recommended in the letter of notification.  Relief denied.

Issue5:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends the discharge was inequitable for a U.S. physician and OIF war veteran.  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 conduct or performance of duty outweighed the positive aspects recorded in the service record, and the awarded characterization of service was warranted.  Relief denied.

Issue6:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends that previous reviews of this case by a Congressman and the response by a naval attorney unfairly, inaccurately, and inequitably challenged the Applicant’s motivations for enlisting in the military as a foreign physician when the Applicant is in-fact a U.S. physician.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that there was a wrongful discharge in this case.  The Applicant’s statements alone do not overcome the government’s presumption of regularity.  The naval attorney referenced by the Applicant was not the separation authority.  The Separation Authority determines whether the allegations in the notification of the basis for separation are substantiated by the evidence.  There is no guarantee that a servicemember will receive a more or less favorable discharge based upon the recommendation or statements of other servicemembers involved in administrative discharge proceedings.  The NDRB determined the Applicant’s conduct, which forms the primary basis for determining the character of service, reflected a significant departure from the conduct expected of a servicemember and that an upgrade was not warranted.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, 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 MISCONDUCT (SERIOUS OFFENSE)

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