Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: jennifer.miles
Company: NCPB

Docket No. ND10-00660

ex-SR, USN

Current Discharge and Applicant’s Request

Application Received: 20091228
Characterization of Service Received: (per DD 214) UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge: (per DD 214) PATTERN OF MISCONDUCT
Authority for Discharge: (per DD 214) MILPERSMAN 1910-140 [PATTERN OF MISCONDUCT]

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

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	20040527 - 20050302  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  20050308	Age at Enlistment:  19
Period of Enlistment:  4 Years  12 MONTHS Extension
Date of Discharge:  20080103	Highest Rank/Rate:  SN
Length of Service:  02 Year(s)   08  Month(s)   25 Day(s)
Education Level:  12	AFQT:  38
Evaluation Marks:	Performance:  2.5 (Inc)	Behavior:  2.0 (Inc)	OTA:  2.25 (Inc)

Awards and Decorations (per DD 214):	NDSM GWOTSM

Periods of UA/CONF:	UA 20070827 - 20070928 (32 days)
			CONF 20071029 - NFIR (NFIR)

NJP:  1

- 20070523:	Article 92 (Failure to obey order, regulation), 20070518
	Article 111 (Drunken Driving, 0.113 BAC), 20070519
	Awarded: RIR E-2 FOP RESTR 60 days   Suspended:  NONE

SCM:  1

- 20071029:	Article 85 (Desertion), 20070827-20070928
	Article 87 (Missing Movement), 20070907 
	Article 121 (Larceny), 20070825
	Sentence: RIR E-1 CONF 30 days FOP

SPCM:  NONE

CC:  NONE

Retention Warning Counseling:  1

- 20070523:	For violation of UCMJ Article 92 – FAILUR E TO OBEY LAWFUL ORDER OR REGULATION and Article 111 – DRUNKEN AND RECKLESS OPERATION OF A VEHICLE.  

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:	☐	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.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until 19 May 2008, Article 1910-140, SEPARATION BY REASON OF MISCONDUCT - 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.

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

Applicant’s Issues

1.	Applicant contends he was not a deserter and intended to return to his command while on unauthorized absence.
2.	Applicant contends that his poor decisions, which led to misconduct, stemmed from personal stressors resulting in depression and PTSD.
3.	Applicant contends his post-service achievements are indicative of his true character.

Decision

Date:  20110217	DOCUMENTARY REVIEW	Location:  Washington D.C.	Representation:  NONE

By a vote of 5-0 the Characterization shall remain UNDER OTHER THAN HONORABLE CONDITIONS.
By a vote of 5-0 the Narrative Reason shall remain PATTERN OF MISCONDUCT.

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 identified three decisional issues for the board’s consideration.  The Board completed a thorough review of the circumstances that led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included one NAVPERS 1070/613 (Page 13) retention warning on 23 May 2007 for misconduct related to drunken driving and travel to a foreign country without permission; one nonjudicial punishment (NJP) for violations of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey an order or regulation by not obtaining an approved liberty chit prior to traveling to Mexico, 18 May 2007) and Article 111 (Drunken driving, BAC 0.113, 19 May 2007); and one summary court-martial (SCM) for violations of the UCMJ: Article 85 (Desertion, 32 days, 27 Aug 2007-28 Sep 2007), Article 87 (Missing movement through neglect, 7 Sep 2007), and Article 121 (Larceny of a fellow Sailor’s laptop computer valued at $2692.82).  Violation of Articles 85, 87, 111, and 121 are each considered serious offenses and are punishable by 6 months to 5 years of confinement and a Bad Conduct or Dishonorable Discharge if awarded at trial by punitive Courts-Martial (Special or General).  Based on the offenses committed by the Applicant, his command chose to administratively process him for separation.  When notified of administrative separation processing using the administrative board procedure on 29 Oct 2007, the Applicant waived his rights to consult with a qualified counsel, submit a written statement, and request an administrative separation board.

Issue 1:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends he was not a deserter and intended to return to his command while on unauthorized absence.  This issue relates to the Summary Court-Martial conducted on 29 Oct 2007 in which the Applicant pled and was subsequently found guilty of three violations of the UCMJ to include Article 85 (Desertion, 32 days) in which he absented himself from his appointed place of duty and proceeded away from his home port of San Diego, CA to Canada, purportedly enroute to Arlington, VA, his home of record.  In response to the Applicant’s issue, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts.  However, the Applicant’s administrative separation and discharge process were considered under the pertinent standards of equity and propriety to determine if any extenuating or mitigating factors in his case may have warranted relief.  The NDRB found no evidence in the record, nor did the Applicant provide any substantial credible evidence, to rebut the findings of the Summary Court-Martial.  Therefore, the NDRB presumed regularity in the conduct of Government affairs and determined this issue to be without merit.  Relief denied.

Issue 2:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends that his poor decisions, which led to misconduct, stemmed from personal stressors resulting in depression and PTSD.  Sailors and Marines are educated from the earliest days of their enlistments and consistently reminded throughout of the multiple support services and resources available to them.  There is no evidence in the record, nor did the Applicant provide any evidence, to indicate he attempted to utilize the numerous services available for service members who undergo personal problems during their enlistment, such as the Navy Chaplain, Medical or Mental Health professionals, Navy Relief Society, Family Advocacy Programs, or even the Red Cross.  This fact is substantiated in the Arlington, VA Department of Human Services report (Nov 2009) stating the Applicant “…had not taken time to meet with clergy or someone from mental health unit to process his emotions accordingly” in referring to the personal life stressors he was encountering during service.  The NDRB recognizes that serving in the U.S. Navy is challenging.  However, members of the Naval service are expected to uphold the high standards of conduct as evidenced by our Core Values of Honor, Courage, and Commitment, no matter the mission or environment in which assigned.  Personal stress does not mitigate or otherwise lessen the seriousness of the Applicant’s misconduct.  The record clearly reflects the Applicant’s misconduct was willful, that he was responsible for his actions, and that he should be held accountable.

On 6 Jun 2007, Naval Medical Center San Diego completed a psychological and alcohol-drug assessment evaluation of the Applicant after he had been command-referred due to a DUI incident in May 2007.  The report stated “no psychiatric diagnosis or condition AXIS I or AXIS II” and released the Applicant fit for duty without limitations.  Additionally, on his separation physical, dated 4 Dec 2007, the Applicant did not complain of, nor did his physician find evidence of, any outstanding problems that would warrant follow-on evaluation/treatment; he was found fit for separation from the Navy that subsequently occurred on 3 Jan 2008.  Sixteen months after his separation, on 11 May 2009, the Applicant was evaluated by the Arlington, VA Department of Human Services and diagnosed with AXIS I: Depressive disorder not otherwise specified and PTSD.  Though he may exhibit signs and symptoms of PTSD after his separation from service, there is no evidence in the records to support the Applicant’s claim that PTSD was causal in the decisions that led to his misconduct and subsequent separation from service.

On the Applicant’s final evaluation and counseling report for the period Jul-Nov 2007, the evaluator stated the Applicant “…has shown no intention of bettering himself or others.  He requires constant supervision and cannot be entrusted to accomplish the simplest of tasks.  Military bearing and character are well below expected standards, as indicated by his poor hygiene.  He refuses to comply with these basic standards despite continuous counseling….Administrative burden…His irresponsible behavior and self-destruction render him unfit for continued military service.   Not recommended for retention.”  After careful consideration of all the facts and circumstances surrounding this case, the Board found this issue to be without merit and did not provide a basis for which relief could be granted.  Relief denied.

Issue 3:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends his post-service achievements are indicative of his true character.  The Applicant provided documentation that included the Applicant’s claim request letter to the Department of Veterans Affairs (Dec 2009), the Applicant’s pre-separation letter to his U.S. Navy chain of command (Nov 2007), character reference letters (3), a death certificate, a marriage certificate, and a U.S. Navy correspondence letter.  Though not submitted by the Applicant, documentation could have included: verifiable employment record(s); letter(s) of recommendation from his employers; evidence of alcohol rehabilitation treatment completion or an alcohol-free lifestyle; evidence of financial stability; certification of non-involvement with civil authorities; college or vocational school transcripts; and documentation of community or church service.  The NDRB considers post-service conduct in order to determine if the misconduct committed during active duty was indicative of the Applicant's character or an aberration.  However, there is no law or regulation that provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.  After careful examination and review of all the available evidence, to include documentation submitted by the Applicant, the Board determined this issue did not provide a basis for which relief could be granted.  Relief denied.

In the Applicant’s statement, he contends that he was awarded a Good Conduct Medal.  This is incorrect.  A Good Conduct Medal is awarded after three years of service without any misconduct.  The Applicant only served for 2 years, 8 months, 25 days and had multiple instances of misconduct during his enlistment.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries and administrative separation process, the Board found the discharge was proper and equitable.  Therefore, the awarded characterization of service shall remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain PATTERN OF MISCONDUCT.  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 Upgrades, and Post-Service Conduct.

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 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), 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 - Nonjudicial 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