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

Docket No. ND09-00555

ex-SN, USN

Current Discharge and Applicant’s Request

Application Received: 20090109
Characterization of Service Received:  GENERAL (UNDER HONORABLE CONDITIONS)
Narrative Reason for Discharge: MISCONDUCT MINOR DISCIPLINARY INFRACTIONS
Authority for Discharge:  MILPERSMAN 1910-138 MISCONDUCT MINOR DISCIPLINARY INFRACTIONS

Applicant’s Request:  Characterization change to:  HONORABLE
		       Narrative Reason change to:  NONE REQUESTED

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19991209 - 20000112  COG	Active:	NONE

Period of Service Under Review:
Date of Enlistment:  20000113	Age at Enlistment:  22
Period of Enlistment:  4 Years  NO Extension
Date of Discharge:  20010420	Highest Rank/Rate:  SN
Length of Service:  01 Year(s)   02  Month(s)   17 Day(s)
Education Level:  10	AFQT:  NFIR
Evaluation Marks:	Performance:  3.0 (2)	Behavior:  2.0 (2)	OTA:  2.58

Awards and Decorations (per DD 214):	NONE

Period of UA:  20000526-20000530

NJP:  3
- 20000602:	Article 86 (UA), 2 specifications
	Article 87 (Missing movement)
	Article 92 (Failure to obey lawful order)
	Awarded: RIR FOP RESTR EPD  Suspended:  NONE

- 20010315:	Article 86 (UA from duty)
	Article 134 (Incapacitated for performance of duty)
		Awarded: RESTR EPD FOP  Suspended:  FOP  Vacated 20010330  

- 20010419:	Article 134 (Breaking restriction)
		Awarded: RESTR  Suspended:  RESTR  

SCM:  NONE	SPCM:  NONE	CC:  NONE

Retention Warning Counseling:  NONE

Administrative Corrections to the Applicant’s DD 214

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

	Block 25, Separation Authority, should read: “1910-138”
	
The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate.

Types of Documents Submitted/reviewed

Related to Military Service:	
                                         DD 214:  ☒	 Service/Medical Record:  ☐		  Other Records:  ☐

Related to Post-Service Period:	
	Employment:		☐	Finances:		☐	Education/Training:	☐
	Health/Medical Records:	☐	Substance Abuse:		☐	Criminal Records:	☐
	Family/Personal Status:	☐	Community Service:	☐	References:		☐
              Additional Statements:
                             From Applicant:  ☐	From Representation:         ☐	From Congress member:    ☐

                    Other Documentation:  ☐

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 26, effective 4 January 2000 until 
24 February 2002, Article 1910-138 , Separation By Reason Of Misconduct - Minor Disciplinary Infractions

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.

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

Applicant’s Issues

1.	Applicant claims he was suffering from PTSD.

Decision

Date:  20090827	DOCUMENTARY REVIEW	Location:  Washington D.C.	Representation:  NONE

By a vote of 5-0 the Characterization shall remain GENERAL (UNDER HONORABLE CONDITIONS).
By a vote of 5-0 the Narrative Reason shall remain MINOR DISCIPLINARY INFRACTIONS.

Discussion

The 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 Applicant’s record of service included three non-judicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Unauthorized absences – 3 specifications), Article 87 (Missing ship’s movement), Article 92 (Failure to obey other lawful order), and Article 134 (Incapacitation for performance of duty and breaking restriction).  The Applicant also had a pre-service drug waiver for using marijuana thirty-five times prior to entering the Navy.  The NDRB did not have access to the Applicant’s administrative separation package to determine whether or not the Applicant waived his rights to consult with qualified counsel, submit a written statement, and request a review by the general court-martial convening authority.  The Applicant’s DD Form 214 indicates he was administratively separated for misconduct and assigned a separation code of “JKN” indicating he was not entitled to an administrative board.  The presumption of regularity of governmental affairs was applied in the absence of an administrative separation package.  

Issue 1:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED. The Applicant is seeking an upgrade to Honorable and contends he was suffering from PTSD and did not know the effects it would have on him.  Pursuant to a staff psychiatrist’s (Naval Medical Center, Portsmouth, Virginia) medical record of 29 January 2001, the Applicant was onboard the USS COLE (DDG-67) at the time of the fatal bombing on 12 October 2000 and was screened for possible after effects.  The impressions of a clinical psychologist in an undated letter reflects the following: 1) the Applicant started drinking at age 19 (prior to enlisting), 2) was a survivor of the USS COLE, 3) is now suffering from symptoms of PTSD (mild) and bereavement, 4) was returned to full duty, 5) will continue counseling, and 6) will obtain an alcohol evaluation for an alcohol related incident. 

The NDRB appreciates the Applicant’s service and sacrifices that he has made for our country and extends its condolence to him in the loss of friends and injuries he may have sustained during the attack on the USS COLE.  However, in reviewing the record of evidence, including medical records which support the Applicant’s diagnosis of PTSD, the NDRB was not convinced that the Applicant’s misconduct was a result of PTSD as evidenced by the fact that he had been awarded his first three NJPs for violations of Articles 86, 87 and 92, and received below average marks/comments on a performance evaluation 4 months prior to the attack.  Specifically, his supervisor noted in the report that the Applicant had “earned a poor reputation due to early mistakes.” Additionally, the medical evidence indicates the Applicant had a history of alcohol and drug use prior to entering the service and continued to abuse alcohol during his enlistment as evidenced by his second NJP which included a violation of Article 134- incapacitation for performance of duty.  Based on the foregoing, the NDRB determined that an upgrade to Honorable was not appropriate.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries and medical records, the Board found the discharge was proper and equitable.    Therefore, the awarded characterization of service shall remain GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain MINOR DISCIPLINARY INFRACTIONS.

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his discharge.  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic

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.”

Additional Reviews:  After a document review has been conducted, former members are eligible for a personal appearance 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 Association of Service Disable 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 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 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:  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 BCNR can make changes to reenlistment codes.  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-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

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Non-judicial punishment	SCM – Summary court-martial
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties
	CONF – Confinement	CC - Civilian conviction	CCU - Correctional Custody Unit	BW – Confinement on bread and water

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Nonjudicial punishment	SCM – Summary court-martial	
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties 
	CONF – Confinement		B&W – Confinement on bread and water