, ex- AC1, 

Current Discharge and Applicant’s Request

Application Received: 20201205
Characterization of Service Received:   
Narrative Reason for Discharge:   MISCONDUCT (SERIOUS OFFENSE)
Authority for Discharge:   MILPERSMAN 1910-142 [COMMISSION OF A SERIOUS OFFENSE] 

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

Summary of Service

Prior Creditable Service:
Inactive:			Active:	USN   19850225 - 19910322  HON
				USNR 19950628 - 19990930  

Period of Service Under Review:
Date of Enlistment:  19991001	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20050617	Highest Rank/Rate:  AC1
Length of Service:    Year(s)    Month(s)  16  Day(s)
Education Level:  	AFQT:  45
Deployment/Operation: 

Evaluation Marks (# of occasions):  Performance/Proficiency: 4.2 (9)   Behavior/Conduct: 3.4 (9)   OTA: 4.04 
Fitness Reports: 

Awards and Decorations (per DD 214):	GCM (3) NAVY "E" AFEM MUC NDSM (2) NDSM (2) SSDR NMCAM EAWS GWOTSM NMCCM GOLD WREATH AWARD (9) NRSR LOC  

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

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

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:							
“CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19850225 UNTIL 19910322 AND 19950928 UNTIL 1990930”

	  “Block 12a.:  99 OCT 01, Block 12c.:   05 08 17, Block 12d.:   10 01 01, Block 12e.:   01 02 26”

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

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).

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

Applicant’s Issues

1.	The Applicant contends his discharge is improper as his command erred in their discretion to separate him from service. 
2.	The Applicant contends his discharge is improper because his Mental Health condition was not properly evaluated and diagnosed, and his command did not provide sufficient consideration to his Mental Health at the time of separation.
3.	The Applicant contends his in-service and post-service conduct and achievement warrants consideration for an upgrade.

Discussion

Date:  20210513		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 no retention warning counseling and no misconduct resulting in nonjudicial punishment or court-martial.

Issues 1-2:  The Applicant contends his discharge is improper as his command erred in their discretion to separate him from service.  And, the Applicant contends his discharge is improper because his Mental Health condition was not properly evaluated and diagnosed, and his command did not provide sufficient consideration to his Mental Health at the time of separation.

In support of these issues, the Applicant highlighted his professional achievements over the totality of his service and he provided a detailed account of his Mental Health during his service.  In September 1995, during the Applicant’s second enlistment, he began to experience Mental Health symptomology to which he was diagnosed with Panic Disorder.  Nearly one year following this diagnosis, he was treated for anxiety symptoms.  Despite his condition, the Applicant performed well and this is furthered evidenced by his promotion to Petty Officer First Class, awards and decorations, evaluations, and a subsequent reenlistment.  The Applicant further asserted that after his initial period of Mental Health treatment, his condition continued to deteriorate over the years and went untreated.  In May 2005, the Applicant was admitted to a Department of Veterans Affairs (VA) hospital for panic disorder symptoms and suicidal ideations.  Specific to this hospital admission, the Applicant stated that he had a plan to shoot himself and while consuming alcohol, he was found by Navy Law Enforcement personnel to be in possession of a gun.  Following a period of in-patient treatment, the Applicant was diagnosed with Adjustment Disorder with Mixed Anxiety Features and Administrative Separation (ADSEP) processing was initiated.  Ultimately, the Applicant stated the Navy failed to properly diagnose and treat his condition in 1995 and 1996, and as result, his condition worsened and culminated in a suicide attempt.  To further support these issues, the Applicant provided a petitioner’s brief, VA records, excerpts of in-service records, college records, and a resume.  As referenced in the petitioner’s brief, the NDRB did not find a character statement within the full petition.  The NDRB noted that in 2019, the VA granted the Applicant a 30% service connected rating for Panic Disorder.

In review of the evidence of record, the NDRB found the Applicant has two previous periods of Honorable service.  The Applicant’s first period of service was an active duty obligation and the second period of service was a reserve obligation.  The period of service that is subject to discharge review is an active duty obligation and it was a period of five years and nine months.  During this period of service, the Applicant attained below average to above average evaluations while working as an Air Traffic Controller.  Specific to these evaluations, the NDRB noted they were above average early on, however in 2004, one evaluation cited strong professional performance and he successfully completed a Substance Abuse Rehabilitation Program while overcoming a personal setback.  The Applicant’s next evaluation in 2005 cited his referral to SARP Level III, his documented inability to control himself, and a subsequent alcohol related incident which led to his pending ADSEP.  From the record, the NDRB could not determine the specific circumstances concerning the Applicant’s first or second referral to SARP.  Nor was the NDRB able to find a record of the Applicant’s full ADSEP proceedings.

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.  The NDRB thoroughly reviewed the Applicant’s service and medical record and found no evidence to support his claim that his command erred in their discretion to separate him from service and his medical condition was improperly diagnosed and treated at the time of diagnoses.  Furthermore, lacking any substantive detail on the Applicant’s alcohol related incident(s), the NDRB was unable to establish any context to which his Mental Health condition may have been a contributing or mitigating factor in his misconduct.  Additionally, given the self-described events of the Applicant’s suicidal ideation of May 2005 which involved military law enforcement and a follow-up Mental Health diagnosis, the NDRB opined that his command was cognizant of and considered his Mental Health condition at the time of separation.  Although the Applicant contended his command and medical authorities erred during his service, the record reflects willful misconduct that demonstrated he was unfit for further service.  Relief denied.

Issue 3:  The Applicant contends his in-service and post-service conduct and achievement warrants consideration for an upgrade.

In support of this issue, the Applicant indicated that he performed well despite his Mental Health condition.  Since separation from service, the Applicant is pursuing a Bachelor’s Degree and maintains employment as an Air Traffic Controller.

In review of the evidence of record, the NDRB found the Applicant served for a period of 15 years; a period that includes two previous periods of Honorable service.  During the Applicant’s career, he was awarded a Navy and Marine Corps Achievement Medal, Navy and Marine Corps Commendation Medal, and three Good Conduct Medals.  The Applicant’s evaluations were largely assessed as above average.  However, his evaluations showed a marked decline during the period of service that is under review; specifically, from 2004 to 2005.  The Applicant additionally was referred to SARP on two occasions.  Both of these referrals arose due to alcohol related incidents.

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.  

Following a thorough review of this case, the NDRB found that Applicant’s 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 awarded discharge will remain as issued.  Additionally, the NDRB determined this discharge was proper, equitable, and consistent with the characterization of service given to others in similar circumstances.  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  MISCONDUCT (SERIOUS OFFENSE) with a corresponding separation code of HKQ, 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.