, ex- OSSN, USN

Current Discharge and Applicant’s Request

Application Received: 20200110
Characterization of Service Received:   
Narrative Reason for Discharge:   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: REQUESTED, BUT NOT SPECIFIED

Summary of Service

Prior Creditable Service:
Inactive:	 	             	Active:	 

Period of Service Under Review:
Date of Enlistment:  20130717	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20180404	Highest Rank/Rate:  OS2
Length of Service:    Year(s)    Month(s)  18  Day(s)
Education Level:  12	AFQT:  64
Deployment/Operation: 

Evaluation Marks (# of occasions):  Performance/Proficiency: 4.0 (6)   Behavior/Conduct: 3.0 (6)   OTA: 3.54 
Fitness Reports: 

Awards and Decorations (per DD 214):	Pistol MM NDSM GWOTSM GWOTEM SSDR (2) GCM ESWS

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

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

NJP:  3

		[Extracted from Evaluation dated 20 November 2017]
- 20170619:	Article 91 (Insubordinate conduct toward warrant, noncommissioned, petty officer) 
	Article 117 (Provoking speech, gestures)
	Awarded: RIR RESTR EPD  Suspended:  RIR

		[Extracted from Evaluation dated 20 November 2017]
- 20171003:	Article 89 (Disrespect toward superior commissioned officer) 
	Article 90 (Assaulting, willfully disobeying superior commissioned officer)
	Article 107 (False official statements)
	Awarded: RIR RESTR EPD  Suspended:  EPD

		[Extracted from Evaluation dated 4 April 2018]
- 20180217:	Article 123 (Forgery) 
	Awarded: RESTR EPD  Suspended:  NONE

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 40, effective 21 July 2012 until Present, Article 1910-140, SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

B.  Secretary of the Navy Manual 5420.1 of 29 September 2020 (Standards for the execution of the Naval Discharge Review Board).

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 contributing factor in his misconduct.
2.	The Applicant contends his in-service and post-service conduct and achievement warrants considerations for an upgrade.

Discussion

Date:  20210121		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 91 (Insubordinate conduct toward warrant, noncommissioned, petty officer) 
Article 117 (Provoking speech, gestures)

Article 89 (Disrespect toward superior commissioned officer)
Article 90 (Assaulting, willfully disobeying superior commissioned officer)
Article 117 (Provoking speech, gestures)

Article 123 (Forgery) 

Issue 1:  The Applicant contends his Post-Traumatic Stress Disorder (PTSD) was a contributing factor in his misconduct.

In support of this issue, the Applicant provided a detailed account of his service to include all of his misconduct and the state of his Mental Health at the time of his misconduct.  The Applicant asserted that prior to his misconduct, he served honorably, but he succumbed to personal and professional stressors.  These stressors took a toll on him mentally and eventually led to his own suicidal gesture or attempt and a period of misconduct that included four NJPs.  The Applicant’s record only supports three NJPs, yet the Applicant provided evidence of a charge sheet that was not contained in the record and this highlighted a violation of Article 108 in that he wrongfully destroyed government property by causing $1315 in damage.  In the timeline of the Applicant’s service, this charge sheet would have been his first NJP.  At or around the time of this reported NJP, the Applicant discussed professional stress and a traumatic event in which he found his ex-fiancé after a suicide attempt.  After this traumatic event, his ex-fiancé blamed him for the suicide attempt.  The Applicant stated this event led to his own increase in alcohol consumption and a debilitating mental state.  Following additional misconduct that resulted in NJPs, the Applicant asserted that he felt like a failure and he conceived a plan to commit suicide.  While in the conduct of this suicide attempt, the Applicant passed out from drinking alcohol while a gun was by his side.  The Applicant was found by friends and taken to a Mental Health facility where he was treated for Depression and Anxiety.  Near the time of this suicide attempt, the Applicant was found guilty at NJP for violation of Forgery.  The Applicant stated this charge was a misunderstanding and it involved the subletting of his apartment to another sailor.  To further support his petition, the Applicant provided a personal statement, in-service records, Department of Veterans Affairs (VA) records, and three character statements.  The character statements do support the Applicant’s in-service Mental Health, his account of his suicide attempt, and his account of his last NJP that was characterized as a misunderstanding.

In review of the evidence of record, the NDRB found the Applicant served for a period of four years and nine months.  During this period, he attained average to above average evaluations; was promoted to Second Class; completed two sea-service deployments; and was awarded a Good Conduct Medal and the Enlisted Surface Warfare Specialist insignia.  The NDRB noted that all of the Applicant’s fleet service was aboard the USS Cole where he served as an Operations Specialist.  Per the record, the Applicant was additionally subject to and found guilty at three NJPs for violations of Articles 89, 90, 91, 107, and 117.  Specific circumstance for this misconduct included displaying disrespect to a Chief over a trivial matter; disrespect to a Commissioned Officer; failing to stand a proper watch when order to do so; providing a false official statement; and forgery.  Additional details concerning these offenses were not contained in the record, however, the Applicant did provide evidence of charge sheets and/or a records of NJP that provided some detail.  In May 2017, one month prior to the first documented NJP in the record, the Applicant was evaluated and diagnosed by a competent Mental Health authority with Adjustment Disorder.  The Applicant continued to receive routine Mental Health treatment from this initial diagnosis and in December 2017, he was diagnosed with Alcohol Dependence in the context of personal and professional stress.  At the time of this evaluation, the Applicant reported an increase in alcohol consumption, depressive symptoms, and a separation from his fiancé.  The NDRB did not find any evidence of the Applicant’s Administrative Separation proceedings within the record.  Following separation from service, the VA granted the Applicant a service connected rating of 70% for Major Depressive Disorder among other Mental Health related Disorders.

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.  

In determining a discharge characterization of service, the Applicant’s conduct forms the primary basis for consideration.  The Applicant’s in-service conduct included at least three NJPs and this was a willful failure to meet the requirements of his contract honorably.  However, the Applicant contends his PTSD was a mitigating factor in his misconduct.  The Applicant’s in-service records support a diagnosis of Adjustment Disorder and his treatment records and post-service statement support personal and professional stressors.  This evidence, coupled with the post-service VA diagnosis support the Applicant’s contention that his Mental Health was a mitigating factor associated with some part of his in-service misconduct.  However, the NDRB opined that some of the Applicant’s misconduct involved deliberate and conscious decisions and his Mental Health was not a sufficient compelling factor to excuse and absolve him of all misconduct.  Furthermore, the NDRB opined that his command to include the Separation Authority was aware and fully considered his Mental Health at the time of separation and the principles of liberal consideration were sufficiently applied during the determination of his discharge.  Accordingly, the NDRB concluded that the quality of his 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 discharge will remain as issued.  Relief denied.

Issue 2:  The Applicant contends his in-service and post-service conduct and achievement warrants considerations for an upgrade.  

In support of this issue, the Applicant discussed his in-service achievement and indicated that he served honorably prior to the decline of his Mental Health.  Regarding the Applicant’s post-service, provided statements supported his full time employment, pursuit of higher education, and current well-being.

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.  Additionally, the NDRB is authorized to consider post-service factors in the re-characterization of a discharge.  However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question.  

In full review of this case to include the documentation provided for post-service consideration, the NDRB the characterization of service received was appropriate considering the circumstances of misconduct and his full record of service.  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  GENERAL (UNDER HONORABLE CONDITIONS), the narrative reason for separation shall  PATTERN OF MISCONDUCT with a corresponding separation code of JKA, 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.