ex- QMSR, 

Current Discharge and Applicant’s Request

Application Received: 20180816
Characterization of Service Received:   
Narrative Reason for Discharge:   MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE
Authority for Discharge:   MILPERSMAN 1910-142 [COMMISSION OF A SERIOUS OFFENSE] 

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

Summary of Service

Prior Creditable Service:
Inactive:			Active:	 

Period of Service Under Review:
Date of Enlistment:  20030924	Age at Enlistment:  19
Period of Enlistment:  4 Years   Extension
Date of Discharge:  20060504	Highest Rank/Rate:  QMSN
Length of Service:  02  Year(s)  07  Month(s)  11  Day(s)
Education Level:  12	AFQT:  41

Evaluation Marks (# of occasions):  Performance/Proficiency: 2.7 (3)   Behavior/Conduct: 3.0 (3)   OTA: 2.72 

Awards and Decorations (per DD 214):	MUC NDSM GWOTSM SSDR 

Periods of CONF:  NONE
Other Time Lost per DD214:  NONE

SCM:   SPCM:    CIVIL ARREST:   CC:   

NJP:  3

- 20050318:	Article 86 (Absence without leave, etc.) 
	Article 91 (Insubordinate conduct toward warrant, noncommissioned, petty officer)
	Awarded: RIR FOP RESTR EPD   Suspended:  FOP    

- 20060126:	Article 86 (Absence without leave, etc.) X2 
	Awarded: RIR FOP RESTR EPD    Suspended:  RIR FOP RIR    

- 20060405:	Article 128 (Assaults) 
	Awarded: RIR FOP RESTR EPD   Suspended:      

Retention Warning Counseling:  2

- 20050318:	For violation of article 91 resulting in NJP.

- 20060503:	For a restrictive reenlistment of RE-4 due to a commission of a serious offense.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

	  “”
	  
“MISCONDUCT - COMMISSION OF A SERIOUS   OFFENSE”

The NDRB will recommend to Commander, Navy Personnel Command or Commandant of the Marine Corps that the DD 214 be corrected as appropriate.

NDRB Documentary Review Conducted (date):	20100120
NDRB Documentary Review Docket Number:	ND09-01128
NDRB Documentary Review Findings:		Proper as issued and that no change is warranted.

Types of Documents Submitted/reviewed

	DD 214:		Service/Medical Record:		Other Records:	
	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:    

	Witness E-1:			Witness C-1:	
	Witness E-2:			Witness C-2:

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560D), 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 Manual 5420.1 of 29 September 2020 (Standards for the execution of the Naval Discharge Review Board).

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 128.

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

Applicant’s Issues

1.	The Applicant contends his discharge is improper because the underlying basis for separation was procedurally defective at the time of discharge.  
2.	The Applicant contends his Post-Traumatic Stress Disorder (PTSD), which is secondary to his Military Sexual Trauma (MST) is a mitigating factor in his misconduct.
3.	The Applicant contends his discharge is inequitable because the adverse action, to include the administrative discharge was unfair at time and the awarded characterization of service has since served its purpose.
4.	The Applicant contends his in-service and post-service conduct and achievement warrants consideration for an upgrade.

Discussion

Date:  20201214		Location:  WASHINGTON D.C.	Representation:  

The Naval Discharge Review Board (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 completed a thorough review of the circumstances that led to the discharge and the discharge process to ensure the pertinent standards of equity and propriety were met.

As a result of the Applicant’s claim of a mental health condition, including PTSD, TBI, or Military Sexual Trauma, and in accordance with 10 U.S.C. § 1553, the NDRB included a member who is a physician, clinical psychologist, or psychiatrist.  
As a result of the Applicant’s claim PTSD/TBI was based in whole or in part on sexual trauma, intimate partner violence, or spousal abuse, the NDRB obtained a review by a psychiatrist, psychologist, or social worker with training on mental health issues associated with PTSD/TBI or other trauma.  Additionally, and pursuant to § 1553, the NDRB reviewed the case with liberal consideration that a mental health condition, including PTSD, TBI, or Military Sexual Trauma potentially contributed to the circumstances resulting in the discharge of a lesser characterization.  A review of the record revealed that the Applicant did not deploy in support of a contingency operation, and so this case did not warrant an expedited review in accordance with § 1553.

The Applicant's record of service included:

  for  of the Uniform Code of Military Justice (UCMJ): 
Article 86 (Absence without leave, etc.) 
Article 91 (Insubordinate conduct toward warrant, noncommissioned, petty officer)

Article 86 (Absence without leave, etc.) (Two Specifications)

Article 128 (Assaults)

Issue1:  The Applicant contends his discharge is improper because the underlying basis for separation was procedurally defective at the time of discharge.  

In review of the evidence of record, the Applicant was subject to and found guilty at three NJPs for violations of 86 (Three Specifications), 91, and 128.  The Applicant’s last NJP involved the Article 128 violation.  Subsequent to this NJP, the Applicant was advised of Administrative Separation processing under the basis of Pattern of Misconduct and Commission of a Serious Offense, and the least favorable characterization of service that he may receive would be Under Other Than Honorable Conditions (UOTHC).  The record indicates that following this notification, the Applicant was afforded all available rights and his Commanding Officer recommended that he be separated with a UOTHC characterization.  Ultimately, the Separation Authority in this case determined the primary basis for separation was Commission of a Serious Offense and a UOTHC was directed.  In full review of the Applicant’s record to include his in-service medical record, the NDRB found no other bases for separation are supported and therefore, the NDRB determined that his command acted appropriately and properly in processing the Applicant for separation.

Issues 2-3:  The Applicant contends his PTSD, which is secondary to his MST is a mitigating factor in his misconduct.  And, the Applicant contends his discharge is inequitable because the adverse action, to include the administrative discharge was unfair at time and the awarded characterization of service has since served its purpose.  Lastly, the Applicant contends his in-service and post-service conduct and achievement warrants consideration for an upgrade.

In support of these issues, the Applicant stated that all of his misconduct can be attributed to being a naïve victim of sexual trauma and he poor leadership who harassed him.  Early into service and while on his sea-service deployment, the Applicant stated that he was forced by his superiors to have sex with a prostitute.  The Applicant indicated that he did not want to appear weak in front of his superiors and he had some belief that he had to prove to his superiors that he was not a homosexual.  This traumatic incident of forced sexual conduct was repeated twice more at different locations while on his deployment.  Following his deployment, the Applicant indicated that he was invited to a sexual orgy where again, he was forced or coerced into participating in sexual acts.  The Applicant stated that these traumatic sexual events contributed to the deterioration of his in-service mental health and directly contributed to his misconduct.  The Applicant described the circumstances for his Article 86 and 91 offenses by stating that he was trying to get away from his perpetrators and he had disagreements with the perpetrators while he vocalized that he did not want to participate in any more sexual encounters.  The Applicant stated his last offense, an Article 128 violation, involved a senior sailor grabbing his hand while on the mess deck and wanting the Applicant to join him in his personal berthing space.  The Applicant asserted that he relented on the Sailor’s desires and forceful actions, and the Sailor proceeded to choke him.  While at NJP for this offense, the Applicant relayed his account of his Article 128 offense to the Commanding Officer, but his story was not believed.  Following NJP, the Applicant indicated that he requested to be separated from service as he feared for his life and wanted to remove himself from the continued torment and harassment that received from his superiors.

Following separation from service, the Applicant stated that he has continued to struggle with his mental health.  In 2010-2011, the Applicant indicated that he was admitted to a Department of Veterans Affairs (VA) hospital for panic attacks.  In 2018, the Applicant was evaluated by a private Mental Health provider for PTSD.  During this evaluation, the Applicant described his traumatic in-service sexual encounters and reported difficulty with sleeping, temperament, anxiety, panic attacks, and personal relationships.  From this private evaluation the Applicant was diagnosed with General Anxiety Disorder, Social Anxiety Disorder, Major Depressive Disorder, and PTSD.  Subsequent to this evaluation, the Applicant presented himself to the VA and the VA concluded his service was Honorable for VA purposes.  The Applicant further stated that he is service connected by the VA for a diagnosis of PTSD.

Apart from the Applicant’s misconduct, he asserted that he performed well in his two years and seven months of service.  The Applicant highlighted his completion of one sea-service deployment and a successful change of rating from Airman to Quartermaster.  Following separation, the Applicant further asserted that he has largely found professional success.  Today, he is self-employed in finance.  To support his petition, the Applicant provided evidence of three character statements, educational recognition and achievements which includes a Bachelor’s Degree, various documents relating to professional recognition, a marriage certificate, a document indicating an above average credit score, and documents relating to other pursuits such as non-profit and health counselor work.

In review of the evidence of record, the NDRB found the Applicant served for a period of two years and seven months.  During this period, the Applicant completed one sea-service deployment, attained below average to average evaluations, and changed his rating from Airman to Quartermaster.  The Applicant was additionally found guilty at three NJPs for violations of Articles 86 (Three Specifications), 91, and 128.  The NDRB did not find any detail concerning the Article 86 and 91 violations in the record.  In the Applicant’s Commanding Officer’s Administrative Separation recommendation, he described the Article 128 violation as he was found guilty of striking another sailor on the aft deck mess decks on board the ship.  The Commanding Officer further stated that his pattern of misconduct demonstrates that he cannot follow Navy rules and he has been give every opportunity to reform.  On review of the Applicant’s full record which included his medical record, the NDRB found no in-service evidence to support his MST or any evaluation for Mental Health symptomology.

The Applicant was separated from service in 2006.  In 2009, the NDRB found the Applicant was evaluated by the VA for foot numbness and leg compartment syndrome.  The Applicant suggested his leg compartment syndrome may be related to the stress and anxiety that he developed while serving.  In 2011, the Applicant was evaluated and treated by the VA for Pericarditis which is an infection and inflammation of the heart’s outer sac.  This facts of this specific evaluation is contrary to the Applicant’s statement that he was evaluated for Panic Attacks at this time.  In 2018, some 12 years after separation, the Applicant first presented his in-service sexual trauma in a private Mental Health setting.  From this evaluation, the NDRB noted he was diagnosed with numerous Mental Health conditions to include PTSD.  Subsequent to this evaluation, he appealed to the VA.  The VA concluded that a record review and comprehensive evaluation did not indicate/confirm, within a reasonable degree of clinical probability, that there was a temporal relationship between the Applicant’s current reported symptoms and his military service or service-related exposures; nor was there medical evidence to suggest that symptoms were exacerbated beyond the normal course of progression by his military service or service-related exposures.  From this evaluation, the VA diagnosed the Applicant with Personality Disorder with Other Trauma Stressor Related Disorder.  The latter disorder was attributed to childhood experiences.  

The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service.  

The government enjoys a presumption of regularity in the conduct of its affairs and the Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  Furthermore, in determining discharge characterization of service, the Applicant’s conduct forms the primary basis for consideration.  The Applicant’s in-service conduct included three NJPs.  Upon review of this misconduct, the NDRB did not find that much of it was detailed in the record and from the Applicant’s testimony and supporting documentation, some inconsistencies in his accounts of this misconduct were noted.  As such, the NDRB reasoned that this misconduct was a willful failure to meet the requirements of his contract honorably.  However, the Applicant contends his post-service conduct and achievement warrants consideration; and his misconduct is mitigated by his PTSD diagnosis, which is secondary to his MST.  Some 12 years after separation from service, the Applicant first reported his in-service MST in a private Mental Health evaluation.  From this evaluation, the Applicant received numerous Mental Health diagnoses which included PTSD.  Following presentation of this information to the VA and a comprehensive evaluation by the VA, the NDRB found the VA’s evaluation to be compelling in that he did not endorse the full spectrum of symptoms required to confirm a diagnosis of PTSD; there was no confirmation of a nexus between his current reported symptoms to his reported in-service exposures; and he did endorse symptoms associated with an Other Specified Trauma and Stressor Related Disorder that was attributed to childhood experiences.  Although the Applicant may feel that his Mental Health diagnosis and MST were the underlying causes of his misconduct, the record reflects willful misconduct that demonstrated he was unfit for further service.  The evidence of record did not show that his PTSD, which is secondary to his MST were sufficient mitigating factors to excuse the Applicant’s conduct or accountability concerning his actions.  After an exhaustive review which included a full assessment of the matters provided for post-service consideration, the NDRB determined that the Applicant’s Mental Health and MST did not mitigate the Applicant’s misconduct.  Accordingly, the NDRB determined his misconduct involved conscious decisions to violate the tenants of honorable and faithful service, and the awarded characterization of service and narrative for separation will remain as issued.  Relief denied.

Decision

After a thorough review of the available evidence, to include the Applicant’s issues, summary of service,  record entries, and discharge process, the Board found  .  Therefore, the awarded characterization of service shall  UNDER OTHER THAN HONORABLE CONDITIONS, the narrative reason for separation shall  MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE with a corresponding separation code of JKQ1, and the reentry code shall  RE-4.  The Applicant is not eligible for further reviews 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.  

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/.  More information is available at http://www.secnav.navy.mil/mra/CORB/pages/ndrb/default.aspx.

Additional Reviews: After a document review has been conducted, former members are eligible for a personal appearance or telephonic 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: 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-Traumatic Stress Disorder and/or Traumatic Brain Injury: For all claims involving PTSD and/or TBI, the NDRB’s review implemented the guidance set forth in the SECDEF Memorandum of 3 September 2014 (Supplemental guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder).  In accordance with U.S. Code, Title X, Section 1553 (d)(1) & d(2), the NDRB included a member who is a physician, clinical psychologist, or psychiatrist and accorded the case sufficient priority to achieve an expedited resolution and a final decision.

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.

Military Sexual Trauma: The Department of Veterans Affairs (VA) uses the term "military sexual trauma" (MST) to refer to experiences of sexual assault or repeated, threatening sexual harassment experienced while on federal active duty, active duty for training, or inactive duty training.  To get confidential one-on-one help please contact the MST Coordinator at your nearest VA Medical Center or Call Safe Helpline at 1-877-995-5247 or visit www.mentalhealth.va.gov/msthome.asp.

Reporting Military Sexual Trauma: To report a military sexual trauma, you can make an anonymous report to the Naval Criminal Investigative Service (NCIS) by Text or Online.  The NCIS Tip Line provides service members, veterans and civilians a safe, discreet and ANONYMOUS option to report criminal and force protection threats within the USN and USMC without concerns of retaliation.  To report a crime by Text: Text  274637 (CRIMES); Type “NCIS” at the top of the message; and include as much detail as possible to ensure your tip can effectively be investigated.  To send your ANONYMOUS Tip via the online, go to https://www.tipsubmit.com/webtipsNAV.aspx?AgencyID=840.

Suicide Prevention: Veterans in emotional crisis or their loved ones can call the free and confidential Veterans Crisis Line at 1-800-273-8255 (then press 1); or chat online at http://www.veteranscrisisline.net, or send a text message to 838255 to connect with a caring, qualified Veteran Affairs Responder who can deal with any immediate crisis.