, ex- LSSA, USN

Current Discharge and Applicant’s Request

Application Received: 20190916
Characterization of Service Received:    
Narrative Reason for Discharge:    MISCONDUCT - PATTERN OF MISCONDUCT
Authority for Discharge:    MILPERSMAN 1910-140 [PATTERN OF MISCONDUCT] 

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

Summary of Service

Prior Creditable Service:
Inactive:			Active:	 

Period of Service Under Review:
Date of Enlistment:  20080714	Age at Enlistment:  18
Period of Enlistment:  4 Years   Extension
Date of Discharge:  20120709	Highest Rank/Rate:  LSSN
Length of Service:  03  Year(s)  11  Month(s)  26  Day(s)
Education Level:  12	AFQT:  42
Deployment/Operation: 

Evaluation Marks (# of occasions):  Performance/Proficiency: 3.0 (5)   Behavior/Conduct: 2.8 (5)   OTA: 2.90 
Fitness Reports: 

Awards and Decorations (per DD 214):	Pistol MM NDSM GWOTEM GWOTSM HSM SSDR (3) NAVY “E” 

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

SCM:      SPCM:      CIVIL ARREST:      CC:      Retention Warning Counseling:  NONE

NJP:  

		[Extracted from Evaluation Reported dated 22 July 2010]
- 20100710:	Article 134 (General article) 
	Awarded: RIR RESTR EPD  Suspended:  RIR

	[Extracted from Evaluation Reported dated 27 December 2011]
- 20111226:	Article 86 (Absence without leave, etc.) 
	Awarded: RIR RESTR EPD FOP  Suspended:      

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 29, effective 10 November 2009 until 20 July 2012, 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 in-service conduct and achievement warrants consideration for an upgrade.  
2.    The Applicant contends his discharge is improper and inequitable because the Separation Authority did not consider his Mental Health condition at the time of separation.  
3.    The Applicant contends his Mental Health condition and personal hardships were mitigating factors in his misconduct.

Discussion

Date:  20200723		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.  
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 134 (General article)

Based on the  committed by the Applicant, the command administratively processed him for separation.  The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived their rights to consult with a qualified counsel, submit a written statement, and request an Administrative Separation (ADSEP) Board.  However, upon review of the Applicant’s assigned separation code of GKA, the Applicant did request and was granted an ADSEP Board.

Issue 1:  The Applicant contends his in-service conduct and achievement warrants consideration for an upgrade.  

In review of the evidence of record, the Applicant was subject to and found guilty at two NJPs for violations of Articles 86 and 134.  The NDRB did not find any detail on the circumstances of these offenses contained in the record.  Per the Applicant’s petition, he indicated these were minor offenses, yet he failed to provide any explanation or detail of this misconduct.

From the record, the NDRB found the Applicant served for a period of three years and eleven months of his four year service obligation.  In that time, he was attained average evaluations, completed three sea-service deployments, and was awarded a Humanitarian Service Medal (HSM).  Upon reviewing the Applicant’s Department of Veterans Affairs (VA) records, the NDRB reasoned his HSM award was participation in humanitarian response operations during a deployment to Haiti in 2010.  During this crisis response effort to Haiti, the Applicant was serving in the capacity of a Logistics Specialist.  His evaluations noted he prepped pallets and maintained consumables in support of the humanitarian operations.  The NDRB did not see any evidence of heroic actions on the part of the Applicant, nor was their evidence to support that he participated in humanitarian operations ashore.

The Applicant was administratively separated; 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.  Without any supporting evidence to explain the Applicant’s misconduct, the NDRB presumed regularity of government affairs in that an ADSEP Board, his command, and the Separation Authority found that he engaged in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service.  Relief denied.

Issue 2-3: The Applicant contends his discharge is improper and inequitable because the Separation Authority did not consider his Mental Health condition at the time of separation.  The Applicant contends his Mental Health condition and personal hardships were mitigating factors in his misconduct.

The Applicant’s retained counsel for this petition indicated a brief containing arguments and evidence to support these issues would be forthcoming.  On the date in which this documentary review hearing was conducted, no supplemental information had been received by the NDRB.  

In review of the Applicant’s service record, the NDRB found no evidence to support his contention that the Separation Authority did not consider his Mental Health at the time of separation.  The Applicant was subject to and found guilty at two NJPs.  Based on these offenses, he was notified of ADSEP processing for the basis of Pattern of Misconduct.  The Applicant exercised his right to an ADSEP Board and this Board found that the preponderance of evidence supported the basis for separation and recommended an Under Other Than Honorable Conditions characterization of service.  The NDRB did not have a record of this ADSEP Board to determine if mitigating circumstances to include his Mental Health condition were presented on his behalf.  Additionally, the NDRB did not have a record of the Separation Authority’s ADSEP documentation to determine if the Applicant’s Mental Health was a consideration in his separation determination. 

In review of the Applicant’s medical record, the NDRB found no evidence of in-service Mental Health evaluation or treatment.  The NDRB noted that he was seen by medical providers on many occasions for various ailments, but none of these ailments had any reference to Mental Health.  In a post-deployment health assessment of February 2011, the Applicant expressed no health concerns to a medical provider.  In a separations physical of April 2012, the Applicant’s chief complaints were back and knee pain and a hernia.  No other issues to include Mental Health were presented during this separations medical evaluation.  
However, the NDRB acknowledged the Applicant was treated for Post-Traumatic Stress Disorder (PTSD) in 2018, some seven years after separation.  In May 2019, the VA granted him service connection for treatment purposes only for PTSD and migraine headaches.  Evaluation notes from these exams indicated reports of Depressed Mood, Anxiety, and Panic Attacks.  The Applicant furthered revealed he witnessed numerous dead, dying, and gravely injured people during his deployment to Haiti.

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 reviewed the Applicant’s in-service record in full and found no evidence of an in-service Mental Health condition, nor did the NDRB find any evidence of unusual circumstances that may have been a contributing factor to the delayed onset of a Mental Health condition.  Although evidence of a post-service PTSD diagnosis from the VA was found, the NDRB opined that without a full understanding of the Applicant’s misconduct and a clear nexus from the misconduct to the Applicant’s post-service diagnosis, the NDRB was unable to establish the contention that his Mental Health condition and/or personal hardships were contributing and mitigating factors associated with his misconduct.  The Applicant is encouraged to present his case with supplemental arguments and evidence at an NDRB Personal Appearance Hearing.  In conclusion, from the evidence reviewed in the record and this petition, the NDRB determined that his Mental Health diagnosis and personal hardships were not sufficient mitigating factors to excuse the Applicant’s misconduct and the awarded characterization of service is warranted.  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  PATTERN OF MISCONDUCT with a corresponding separation code of GKA, and the reentry code shall  RE-4.  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of the 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/.  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.