, ex- ENS, 

Current Discharge and Applicant’s Request

Application Received: 20200615     
Characterization of Service Received:   
Narrative Reason for Discharge:   MISCONDUCT
Authority for Discharge:   SECNAVINST 1920.6C 

Applicant’s Request:	Characterization change to:	
Narrative Reason change to: REQUESTED BUT REQUESTED NARRATIVES DO NOT EXIST
Reentry Code change to:NONE REQUESTED

Summary of Service

Prior Creditable Service:
Inactive:	 	             	Active:	 

Period of Service Under Review:
Date of Enlistment:  20150206	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20160531	Highest Rank/Rate:  ENS
Length of Service:    Year(s)    Month(s)  25  Day(s)
Education Level:  	AFQT:  NA
Deployment/Operation: 

Fitness Reports: 

Awards and Decorations (per DD 214):	NDSM GWOTSM 

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

NJP:  

- 20150914:	Article 121 (Larceny) 
	Article 133 (Conduct unbecoming officer)
	
	Awarded:       Suspended:      

SCM:    SPCM:    CIVIL ARREST:    CC:    Retention Warning Counseling:  

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:	

Pertinent Regulation/Law

A.  Secretary of the Navy Instruction 1920.6C (ADMINISTRATIVE SEPARATION OF OFFICERS), effective 15 December 2005 until Present, establishes policies, standards and procedures for the administrative separation of Navy and Marine Corps officers from the naval service in accordance with Title 10, United States Code and DoD Directive 1332.30 of 14 March 1997.

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 that his discharge is inequitable because the misconduct that led to his administrative separation  
      is mitigated by a service connected disability associated with a mental health condition. 

Discussion

Date:  20210106		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 121 (Larceny) 
Article 133 (Conduct unbecoming officer)

:  The Applicant contends that his discharge is inequitable because the misconduct that led to his separation is mitigated                   
               by a service connected disability associated with a mental health condition. 

The Applicant contends that his assigned General discharge is inequitable due to the fact that the misconduct committed is mitigated by a VA diagnosed service connected disability associated with a mental health condition. In addition the Applicant states that prior to being discharged he was diagnosed with an adjustment disorder by a military physician who he sought therapy from beginning in February 2016. In September 2015 the Applicant was found guilty of committing violations of Articles 121 and 133 at a NJP hearing and was subsequently relieved for cause and recommended to show cause for retention in the Navy. COMNAVSPERSCOM ltr 1920 dated 19 Jan 2016 notified the Applicant of initiation proceedings requiring him to separate from the naval service. In response, he acknowledged his rights and submitted a qualified resignation request. This request for resignation was approved and the Applicant was separated from the naval service with General (Under Honorable Conditions) discharge.  

Diagnosed with a mental health disorder by the VA effective 1 June 2016 the Applicant states that it his Unspecified Depressive Disorder with Anxious mitigates the misconduct he committed when he was found guilty of shoplifting in September 2015. Suffering from anxiety and depression induced by feelings of lonlieness and professional ridicule after letting his family, friends and shipmates know of his sexual orientation the Applicant states that his judgment was significantly clouded and he acted out in a manner that was uncharacteristic to who he was. In concert with Department guidance the Applicant, with Counsel, requests the Board consider his mental health condition in relation to the misconduct and that liberal consideration be afforded with granting him an upgrade. In a thorough review of the record the Board determined that the Applicant’s condition did not mitigate the misconduct he committed when he stole sundry items from the Navy Exchange. The Boards reasoning is as follows:

Within the documentation provided by the Applicant and the information within his VA medical record it states that his mental health challenges were originally triggered by/due to the shop lifting incident that led to his discharge. While the Applicant states the he experienced bullying and back stabbing after he disclosed his sexual orientation in Feb 2015, it states multiple times in counseling notes that he began having depression and anxiety after the shop lifting incident. His Psychologist who initiated treatment prior to his discharge and post-service also accounts for a manifestation of his issues occurring in 2016 with his act of misconduct as a contributing factor to his anxiety and misconduct. Thus the Board was unable to accurately and directly correlate the diagnosed mental health condition with the specific act of stealing and how it impacted his decision to walk out of the store with items he did not pay for. The Applicant’s integrity and trust would only be further challenged when he continued to lie about the issue to his superiors in an effort to cover up the situation. This is annotated by his Commanding Officer as well as the Applicant himself in a statement to his Commander. While the Applicant may contend that the theft was an impulsive and isolated lapse in judgment his continued efforts to lie to his leadership in explanation challenges the character and integrity of the Applicant. This behavior erodes the trust and confidence afforded to an Officer and is unacceptable for any member of the naval service. Despite being afforded time and opportunity to take responsibility for the theft incident at the Exchange the Applicant continued to lie all the way through to the disciplinary proceedings. This lack of integrity over a sustained period and the lack of diagnosis, at any point in his treatment, that states the Applicant was/is incapable of determining right from wrong led the Board to not associate his mental health as mitigation to the specifics of the misconduct. 

While the Applicant contends that he worked in a discriminatory and hostile climate he only provides statements. The Applicant does not provide any supporting documentation to substantiate the claims that he was ridiculed and discriminated against because of his sexual orientation. A supporting witness statement or character reference would help the Board understand the duress that his command put on him if it could be supported beyond just his statements and descriptions. Statements alone, without sufficient documentary evidence, are not enough for the NDRB to form a basis of relief. In addition there is no record that the Applicant exercised resources available to him if he felt that he was being mistreated. Submitting an Equal Opportunity or Sexual Harassment complaint are examples of resources available to the Applicant that are in place to support those who feel victim to discrimination or unfair treatment. In addition he also had access to confidential counselling services through the Fleet and Family Support Program that he did not utilize prior to his act of misconduct. While the Applicant may have found his personal issues were becoming overwhelming in all aspects of his life as an officer it is expected that one has the personal courage to use the resources on hand to support their individual readiness regardless of the issue. 

The Applicant also contends that he was a high performing member of his command. The application cites a “quick promotion, placement in multiple leadership positions; a man who is responsible, trustworthy and dedicated; and that he was respected by both Command and his division of Sailors.” Aside from the statement there is no record of commendable performance or evaluations within the record for the Board to review as he was assigned to his command for less than a year. While the Board does not assume his professional daily performance was substandard in the absence of performance evaluations or personal commendations, letters of support from supervisors, peers or subordinates would be helpful. Additionally the Applicant had only been on board the USS Stockdale for approximately 116 days at the time of the misconduct. Thus there appeared to be conflict with the positive and respected reputation of the Applicant, as noted above from the application, and the hostile and derogatory climate he said he was experiencing at the time of the misconduct.  

The Applicant makes the statement that he is deserving of an upgrade as his situation is in compliance with DoD guidance, specifically the Kurta Memo. In this case the Applicant does have a service connected disability diagnosed by the VA for depression and anxiety. While the Board did account for this diagnosis along with department guidance for liberal consideration the NDRB is not bound by VA decisions, nor do VA decisions have any bearing on the decisions of the NDRB.
Decisions reached by the U.S. Department of Veterans Affairs (VA) to determine if former servicemembers rate certain VA benefits do not affect previous discharge decisions made by the Navy.  The criteria used by the VA in determining whether a former servicemember is eligible for benefits are different than that used by the Navy when determining a member’s discharge characterization. In this case the Applicant was discharged because he acted in a manner that caused the Navy to lose trust and confidence in his character and integrity. Relief is denied.       

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.  A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record.  In this case, the Applicant’s service was honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record.  In making its determination, the Board considered the Applicant’s appeal for consideration of mental health issues and the mitigation they afford to his misconduct. In this case the Board did not identify the means to which his mental health at the time of the incident would excuse the behavior of a Naval Officer to steal and then lie about it over a sustained period of time. While the Board acknowledges the Applicant’s mental health condition, in a thorough review of the complete record of evidence the NDRB identified the misconduct and discharge as contributing factors to his anxiety and depression vice the anxiety and depression being a mitigating reason to the commission of his misconduct. Ultimately the Applicant was discharged with a General (Under Honorable Conditions) discharge characterization upon submission of his qualified request for resignation. Within this request the Applicant must state they understand their discharge characterization will not be the highest qualitative type of separation provided for officers of the Naval Service. This request was approved so the terms for separation were proper and equitable. Being that the discharge characterization was deemed appropriate by the NDRB it was also determined that the narrative would remain the same. 

The NDRB recognizes that serving in the all-volunteer Armed Forces is challenging but reflects a commitment to our Nation; thus, service members deserve to be recognized upon completion of their service.  One of the ways in which our service members are recognized is through the determination of their characterization of service.  Most servicemembers, however, serve honorably and therefore earn their Honorable discharges.  In fairness to those Marines and Sailors who served honorably, Commanders and Separation Authorities are tasked to ensure that undeserving servicemembers receive no higher characterization than is due.  The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances.

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  MISCONDUCT (OTHER) with a corresponding separation code of BKM.  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.