Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: chananuch.reed
Company: NCPB

Docket No. ND11-00339

ex-HN, USN

Current Discharge and Applicant’s Request

Application Received: 20101122
Characterization of Service Received: (per DD 214) GENERAL (UNDER HONORABLE CONDITIONS)
Narrative Reason for Discharge: (corrected) PATTERN OF MISCONDUCT
Authority for Discharge: (corrected) 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)	20011215 - 20020909  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  20020910	Age at Enlistment:  17 (PARENTAL CONSENT)
Period of Enlistment:  4 Years  24 MONTHS Extension
Date of Discharge:  20060322	Highest Rank/Rate:  HM3
Length of Service:  03 Year(s)   06  Month(s)   13 Day(s)
Education Level:  12	AFQT:  45
Evaluation Marks:	Performance:  3.75 (3)	Behavior:  3.0 (4)	OTA:  2.9 (4)

Awards and Decorations (per DD 214):	NDSM GWOTEM GWOTSM

Periods of UA/CONF:  NONE

NJP:  3

- 20030417:	Article 92 (Failure to obey a lawful order – underage drinking)
	Awarded: FOP RESTR EPD RIR  Suspended:  RIR RESTR

- 20060127:	Article 86 (UA – failure to be at appointed place of duty)
	Awarded: RESTR EPD FOP FOP  Suspended:  NONE  [Extracted from Evaluation Report and Counseling Record dated 20060317.]

- 20060208:	Article 86 (UA – failure to be at appointed place of duty; specifically, failure to be at restriction muster at prescribed time)
	Article 92 (Failure to obey a lawful order – violation of restriction muster order)
	Awarded: RIR RESTR EPD FOP  Suspended:  RIR RESTR EPD FOP

SCM:  NONE	SPCM:  NONE	CC:  NONE	Retention Warning Counseling:  NFIR

Administrative Corrections to the Applicant’s DD 214

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

	Block 12c, Net Active Service This Period, should read: “03  06  13”

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:	☐	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

Decisional issues: The Applicant contends that PTSD symptoms and then treatment and medications were contributing causes to his minor misconduct of record; as such, Applicant contends that PTSD diagnosis and treatment regimen be considered as mitigating factors to his misconduct of record.

Decision

Date:  20110512	      DOCUMENTARY REVIEW	Location:  Washington D.C.	Representation:  NONE

By a vote of 5-0 the Characterization shall change to HONORABLE.
By a vote of 5-0 the Narrative Reason shall change to SECRETARIAL AUTHORITY.

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 NDRB 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 one decisional issue to the NDRB and provided documentation in support of his contentions.  The NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety.

The Applicant entered military service at age 17, without waiver to enlistment standards.  The Applicant enlisted for four years with a guarantee for training as an Aviation Machinist Mate; while undergoing entry level training, he was reclassified to Hospitalman due to a color vision deficiency, which was not waiverable for his original rating.  The Applicant acknowledged the rating change and extended his enlistment to four years with a 24-month extension for his new rating assignment.  The Applicant’s record of service includes three nonjudicial punishments for violations of the Uniform Code of Military Justice, which included violation of: Article 92 – Disobedience of a lawful order or regulation (2 specifications  – (1)  underage consumption of alcohol and (2) violation of a restriction muster order ) and Article 86 – Absence without leave (2 separate specifications of failure to go to appointed place of duty).  The Applicant’s service record does not contain any NAVPERS 1070/613 retention-counseling warnings nor does it contain a copy of his administrative discharge package.  As such, the NDRB was unable to determine if the Applicant was afforded his rights to consult with qualified legal counsel or to provide written statements to the Separation Authority.

The Applicant is a combat veteran, having deployed with the Second Marine Division as a unit corpsman to the Al-Anbar Province of Iraq in support of Operation IRAQI FREEDOM.  The Applicant’s record of service indicates he served honorably while deployed in a combat zone and, having completed the requisite requirements, was designated an Enlisted Fleet Marine Force Warfare Specialist while deployed.  The Applicant was seen and treated by appropriately credentialed mental health care providers while in service.  He was diagnosed with PTSD, in service, and was placed on six months of limited duty by a locally convened medical board.  With this diagnosis and the accompanying treatment plan, the Applicant was determined to be not qualified for Fleet duty assignment and was further recommended for assignment to shore duty for continuity of care.  Since his separation from the Navy, the Applicant has been evaluated for disability by the Department of Veterans Affairs due to his in-service diagnosis of PTSD.  He was evaluated and assigned a disability rating of 50 percent by the VA; he remains under their program for treatment.    

(Decisional Issue) (Propriety/Equity)  RELIEF WARRANTED.  The Applicant is seeking an upgrade in his characterization of service at discharge to Honorable.  The Applicant contends that the PTSD symptoms that manifested, coupled with the treatment and medications, were the contributing cause to his minor misconduct of record; as such, he contends that the PTSD diagnosis and treatment regimen be considered as mitigating factors to his misconduct of record.  The Applicant was a combat corpsman, serving with combat units in Fallujah, Iraq during the Second Battle of Fallujah in November 2004.  Upon return to his home station naval hospital, the Applicant was reassigned to Pharmacy Technician School as a student.  While at the pharmacy school, the Applicant was academically dropped for failing his twelfth week exam.  The Applicant received preliminary orders for assignment to the 2nd Marine Division.  On 6 January 2006, while undergoing a physical exam for FMF 

duty assignment, the Applicant was recommended for evaluation for PTSD.  On 18 January, an appropriately credentialed mental health care provider diagnosed the Applicant with PTSD.  He was subsequently found unfit for FMF or overseas duty and was assigned 6 months of limited duty by a local medical board.  The Applicant was placed on a regimen of medications to treat his sleep disruption and manage his other symptoms and was assigned to a psychotherapy group-counseling program.  On 27 January, the Applicant was subject to nonjudicial punishment for a failure to be at his appointed place of duty on time.  He received a second NJP two weeks later for being late to restriction muster in violation of the restriction order; he was subsequently processed for administrative separation due to Misconduct, having established a pattern of misconduct in accordance with Article 1910-142 the Naval Military Personnel Manual.  The Applicant’s service record does not reflect the requisite NAVPERS 1070/613 retention-counseling warning necessary for processing an administrative discharge pursuant to a pattern of misconduct.                          
 
The NDRB conducted a thorough review of the Applicant’s combat deployment history, the Applicant’s in-service mental health diagnoses of PTSD, his academic failure, and his misconduct of record.  The NDRB determined that the sleeplessness, lack of focus, recurrent nightmares, and avoidance of activities, coupled with the medication regimen prescribed, were, in fact contributory factors to both his academic failure late in the course of instruction and his misconduct related to failing to be at his appointed place of duty at the time prescribed.  The NDRB determined that the discharge, as awarded, was inequitable.

Summary:  After a thorough review of the facts and circumstances unique to this case, the NDRB discerned an inequity in the discharge characterization of the Applicant’s service.  Based on the Applicant's documentation and his official service and medical records, coupled with the facts and circumstances unique to this case, the NDRB determined that relief was both proper and warranted.  The NDRB voted unanimously that an upgrade in the Applicant’s characterization of service at discharge to HONORABLE was appropriate and warranted.  Additionally, the NDRB determined that the narrative reason for separation was not proper; therefore, it shall change to SECRETARIAL AUTHORITY.

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