Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: janet.goode
Company: NCPB

Docket No. ND07-00586

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

ex-TMSR, USN
ND07-00586

Current Discharge and Applicant’s Request

Application Received:  20070404 	Characterization Received:  
Narrative Reason:  PATTERN OF MISCONDUCT Authority:  MILPERSMAN 3630600

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1.  VA Benefits
2.  Attacked by senior petty officer-needs medical/psychological treatment 

Decision

By a vote of  the Characterization shall read .
By a vote of  the Narrative Reason shall  PATTERN OF MISCONDUCT.

Date:  20071204              Location:  Washington D.C	 Representation:  

Discussion

Issue 1:    which the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum for additional information regarding Service Benefits.  

Issue 2 ():  Applicant contends that his discharge should be upgraded because he was attacked by a senior petty officer and as a result became mentally unstable and now is in need of mental and physical treatment from the VA.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  An other than honorable discharge is warranted when there is conduct involving one or more acts of omissions that constitute a significant departure from the conduct expected of members of Naval Service.  The Applicant’s service was marred by two retention warnings, four nonjudicial punishment proceedings for violations of Articles 86, 91 and 92a of the UCMJ.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy.  The NDRB noted in the medical record, evidence that the Applicant suffered from symptoms of PTSD that were service aggravated when he was allegedly sexually assaulted by another service member.  The NDRB found the evidence of record did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded.  After a thorough review of the Applicant’s record, issues submitted, and the standards of discipline, the Board determined that an upgrade in the characterization was not warranted.

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  There is no law or regulation, which provides that an unfavorable discharge may be upgraded, based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any documentation for the Board to consider.

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that 

Administrative Corrections to the Applicant’s DD 214

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

	  “UNDER OTHER THAN HONORABLE CONDITIONS
	  “TL:  930603, 930525
	
The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate. 

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19900503 - 19900918  		Active:   
Period of Service Under Review:
Date of Enlistment: 19900919		Years Contracted:  	Date of Discharge:  19931027
Length of Service:  03  Yrs  01  Mths  09  Dys	Lost Time:  Days UA:    Days Confined:  
Education Level:  	Age at Enlistment:  	AFQT:  47	Highest Rank/Rate:  TMSN
Evaluation marks (# of occasions):	Performance:  3.9(2)	Behavior:  3.7(2)	 OTA:  3.90 
Awards and Decorations (per DD 214):  NDSM

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

19910305:	NJP -- Viol UCMJ Art. 92 - Disobeyed a lawful order by wrongfully failing to remain quiet after taps.
	Awarded - FOP ($150.00) for (1 month).

19910305:	Retention Warning for Commanding Officer’s nonjudicial punishment held on 19910305 for violation of the UCMJ, Article 92.
19920204	Medical Record: USS Orion. Patient referred by Chaplain for incident 4 days ago in which patient states he was the victim of a homosexual advance after accepting an offer to ride to the store.  Once in the car, the other male attempted to grab his leg and persuaded him to park; he got out and left the scene.  He has been troubled by guilt and fear of betrayal, after being violated again.  He reports insomnia, increased anxiety and suicidal thoughts.  Assessment: S/P stressful incident with normal response.  Pt reassured and notified of available support.
19920211	Medical Note: Patient states he didn’t tell the whole story.  He woke up in a car that night and another male was performing oral copulation on him; told him to stop and the other male took him back to club.  Since then he has had thoughts of suicide.  States he held a knife to his throat and almost cut it, ”but was stopped by roommate.”  He requested a Psych consult and gave a history of being made to have sex with his aunt on multiple occasions from age 8-12.  No previous Psych History or Suicidal Ideation.
19920211	Medical Record:  Appears upset, vocalizes story clearly. Assessment:  1) S/P Alleged sexual molestation, 2) Suicidal ideations re #1,  3)  Alleged history of childhood sexual molestation.  Plan: Psych treatment/consult needed; retain on ward until transfer to Naples with escort.
19920304	Medical Record: Narrative Summary –Diagnosis #1 Adjustment Disorder with Mixed Emotional Features.  A 20 year old male with 17 months of service from USS Orion, referred for evaluation of depression and suicidal ideation.  Reports insomnia, decreased appetite, depression, anxiety, and lost of self-assurance since sexually assaulted on 31 Jan.  Significant history of physical, emotional and sexual abuse.  Thought content centered on difficulty dealing with sexual assault.  Disp: Discharged to the Med-Evac System for transfer to CONUS for further evaluation and treatment.
19920305	Medical Record:  Discharge note:  In stable condition; not psychotic, suicidal or homicidal.  Adjustment Disorder with Mixed Features.  Disp:  Discharge to Med-Evac System for transfer to CONUS for further evaluation, treatment and final disposition.
19920309	Psych Clinic Note: Admit for RPO. PT to stay on Medhold.
19920319	Psych Clinic Note:  Patient reports the he was awakened from sleep one night while ashore in Naples, Italy by another Naval male performing fellatio on him.  He directly reported it to NIS.  He now reports sleep disturbance- nightmares, emotional constrictions, waking flashbacks.  Mental Status Exam: Affect constricted w/ anxious mood.  Recommendation:  Unfit for full duty.  Fit for Limdu. Convene Limdu Bd. Refer to Sex Abuse Grp.
19930107	Medical Record:  Psychiatry.  LIMDU Board dictated. Impression PTSD.  Plan: Start Grp.  Recommend Adult Children of Alcoholism meetings.
19930208:	Medical Record:  Reason for visit:  Evaluation of his limited duty status.
	Diagnosis:  Post-traumatic stress disorder, EPTE, mild, service aggravated.
	Recommendation: Med board of the opinion that member suffers from mental disorder that renders him temporarily unfit.  Psych fit to return to limited duty for a period of six months and be followed periodically in an outpatient psychiatric department.  Applicant is to be psychiatrically reevaluated after a period of four months for appearance before a medical board. Remain in CONUS.
19930311:	Medical Board statement:  Recommending a second period of limited duty for 6 months to expire 19930807.
19930617:	NJP -- Viol UCMJ Art. 86 - Absence without leave (1 day)
	Awarded - FOP ($250.00) for (2 months); RIR (E-1); Extra duties (20 days), oral reprimand.  RIR suspended for 3 months.
19930630:	Retention Warning for Commanding Officer’s NJP conducted 19940617 for violation of UCMJ, Article 86 (2 specs), Executive Officer’s Inquiry conducted 19930629 for alleged violation of UCMJ, Article 86 and several department counseling sheets for not being at your assigned duty in a timely manner.

19930729:	NJP -- Viol UCMJ Art. 86 - Unauthorized absence - 19930715, Art. 92 - Failure to obey order or regulation to go to extra duty muster.
	Awarded - FOP ($300.00) for (2 months); RIR (E-1); Extra duties (30 days).
19930812	Notified of Administrative separation processing
19931025:	NJP -- Viol UCMJ Art. 86 - Absence without leave, Art. 91 - Insubordinate conduct toward warrant officer, non-commissioned officer, or petty officer, Art. 92 (2 specs) - Failure to obey order or regulation.
	Awarded - Oral reprimand, Extra duties (45 days).

Discharge Process

Date Notified:					19930812
Reason for Discharge:	 - 
	 - 
Least Favorable Characterization:	

Date Applicant Responded to Notification:		19930826
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			
	Administrative Board			
	GCMCA review				

Date Applicant Responded to Notification:		19931004
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			
	Administrative Board			
	GCMCA review				

Commanding Officer Recommendation (date):	 (19931005)
Separation Authority (date):	BUPERS (19931008)
              Reason for discharge directed:	 - 
              Characterization directed:	
Date Applicant Discharged:	19931027

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:	Service and/or Medical Record:  		Other Records:  

Related to Post-Service Period:  	
	Employment:  			Finances:  			Education: 		
	Health/Medical Records:  		Substance Abuse:			Criminal Records:  	
	Family/Personal Status: 		Community Service:  		References:  		
	
Additional Statements From Applicant:  	From Representative:    
Other Documentation (Describe) 

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C, Change 5, effective 5 March 1993 until 21 July 1994), 
Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - A PATTERN OF MISCONDUCT.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe that 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.”

Additional Reviews:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the 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.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  

Reenlistment/RE-code:  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board 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 subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, 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 “PTSD.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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.  Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

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 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.  

Board Membership:  The names and votes of the members of the 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