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

Docket No. ND11-01529

ex-AZ2, USN

Current Discharge and Applicant’s Request

Application Received: 20110607
Characterization of Service Received: (per DD 214) GENERAL (UNDER HONORABLE CONDITIONS)
Narrative Reason for Discharge: (per DD 214) MISCONDUCT (SERIOUS OFFENSE)
Authority for Discharge: (per DD 214) MILPERSMAN 1910-142 [COMMISSION OF A SERIOUS OFFENSE]

Applicant’s Request:	Characterization change to:	HONORABLE
	Narrative Reason change to:	REQUESTED, BUT NOT SPECIFIED

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	20000520 - 20000706  COG	Active:	USN	20000707 - 20080221  HON

Period of Service Under Review:
Date of Current Enlistment:  20080222	Age at Enlistment:  35
Period of Enlistment:  3 Years  NO Extension
Date of Discharge:  20100902	Highest Rank/Rate:  AZ2
Length of Service:  02 Year(s)   06  Month(s)   11 Day(s)
Education Level:  12	AFQT:  53
Evaluation Marks:	Performance:  4.2 (5)	Behavior:  3.8 (5)	OTA:  3.86

Awards and Decorations (per DD 214):	Rifle SS, Pistol SS, NMCAM (2), MUC (2), GCM (3), NUC, NDSM, GWOTSM, ICM, GWOTEM, OSR (3), SSDR (6), NATO (2), EAWS

Periods of UA/CONF:  NONE

NJP:  2

- 20100201:	Article 90 (Willfully disobeying Superior Commissioned Officer - violated MPO issued by Commanding Officer)  [Extracted from Report and Disposition off Offense(s) dated 20100729.]
	Awarded: RIR                              Suspended:  NONE  
   	
- 20100817:	Article 89 (Disrespect toward a Superior Commissioned Officer/Commanding Officer)
	Article 134 (Indecent language toward Commanding Officer)
	Awarded: RESTR, FOP, RIR      Suspended:  RESTR, FOP, RIR

SCM:  NONE	SPCM:  NONE	CC:  NONE

Retention Warning Counseling:  2

- 20091125:  For violation of Article 92 and 134 of the UCMJ.  Counseled on corrective actions and retained.    

- 20100203:  For failure to obey order or regulation (Violation of Military Protective Order issued by Commanding Officer).

Administrative Corrections to the Applicant’s DD 214

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

	Block 13, Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read:  “NAVY AND MARINE CORPS ACHIEVEMENT MEDAL (2), MERITORIOUS UNIT COMMENDATION (2), GOOD CONDUCT MEDAL (3), NAVY UNIT COMMENDATION, NATIONAL DEFENSE SERVICE MEDAL, GLOBAL WAR ON TERRORISM SERVICE MEDAL, IRAQ CAMPAIGN MEDAL, GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL, NAVY AND MARINE CORPS OVERSEAS SERVICE RIBBON (3), SEA SERVICE DEPLOYMENT RIBBON (6), NATO MEDAL (2), NAVY PISTOL SHOT SHARPSHOOTER RIBBON, ENLISTED AVIATION WARFARE SPECIALIST, NAVY RIFLEMAN SHARPSHOOTER RIBBON, FLAG LETTER OF COMMENDATION (2), LETTER OF APPRECIATION”
	Block 18, Remarks, should contain the statement: “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 000707 UNTIL 080221”

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 29, effective 10 November 2009 until Present, 
Article 1910-142, SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

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.

C.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violations of the UCMJ, Article 89, 90, and 134.

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

Applicant’s Issues

Decisional issues: The Applicant seeks an upgrade in the characterization of his service at discharge, contending that the discharge was inequitable as he was diagnosed with Post-Traumatic Stress Disorder (PTSD), which occurred prior to his misconduct and discharge action.  Furthermore, the Applicant contends that he was misguided in the election of his rights with warnings that he would receive a less honorable discharge if he went to a medical board.  

Decision

Date:  20111116	       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 MISCONDUCT (SERIOUS OFFENSE).

Discussion

The NDRB reviewed the Applicant’s personal statement.  The Applicant stated that he was suffering from PTSD.  As such, in accordance with U.S. Code, Title 10, Section 1553 (d) (1), the board included a member who is a physician, clinical psychologist, or psychiatrist.  In accordance with section 1553 (d) (2), the service secretary expedited a final decision and accorded the case sufficient priority to achieve an expedited resolution.

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 two decisional issues related to the propriety or equity of his discharge action for the NDRB’s consideration.  Additionally, in reviewing the Applicant’s issues, 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’s enlistment record reflects entry into military service at age 18, without waivers to enlistment standards.  The Applicant enlisted on an initial contract for 4 years and executed 44 months worth of extensions before reenlisting in February 2008.  The Applicant was on his second enlistment contract for 3 years when he was discharged after completing 2 years and 6 months of service.  The Applicant’s record of service during his current enlistment period reflects two NAVPERS 1070/613 retention-counseling warnings being issued.  Furthermore, the Applicant’s service record documents two nonjudicial punishments for violations of the Uniform Code of Military Justice (UCMJ): Article 90 (Assaulting or willfully disobeying a Superior Commissioned Officer), Article 89 (Disrespect toward a Superior Commissioned Officer - his Commanding Officer), and Article 134 (Indecent language - toward his Commanding Officer).  The NDRB reviewed the Applicant’s discharge package to ensure the Applicant was afforded all rights, as required by the Naval Military Personnel Manual (MILPERSMAN).  The Applicant was notified - in writing - of the Command’s intent to process him for administrative separation due to Misconduct (Commission of a Serious Offense) in accordance with Article 1910-142 of the MILPERSMAN and Misconduct (Pattern of Misconduct) in accordance with Article 1910-140.  After review by the Staff Judge Advocate, the Separation Authority determined that the evidence of record was sufficient in law and fact to support the proposed reasons for discharge.  As such, the Separation Authority directed the Applicant’s discharge with a General (Under Honorable Conditions) characterization of service and directed that Misconduct (Serious Offense) be the primary basis for discharge; he further directed that the Applicant be assigned an RE-4 re-entry code (not recommended for reenlistment).   

Besides his DD Form 293, the Applicant provided documentation on his behalf from his current attending psychiatrist and from a readjustment therapist from his local veterans center.

(Decisional Issues) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant seeks an upgrade in the characterization of his service at discharge, contending that the discharge was inequitable as he was diagnosed with PTSD, which occurred prior to his misconduct and discharge action.  Furthermore, the Applicant contends that he was misguided in the election of his rights with warnings that he would receive a less honorable discharge if he went to a medical board.

Equity - The Applicant’s application for a review of his discharge contends that he was diagnosed with PTSD.  As such, the NDRB reviewed the Applicant’s record of service to determine if PTSD was service-connected and if it may have been a contributing factor for the Applicant’s misconduct of record.  The NDRB requested the Applicant’s service medical records and any post-service VA medical records to validate any diagnosis of PTSD, the severity of the disorder, and whether it may have been a contributing or mitigating factor in relation to the equity of the discharge.  The Department of Veterans Affairs provided the Applicant’s official medical records for the Board’s review.  The Applicant’s medical record documents an extensive period of psychiatric treatment regarding depression, anxiety, compulsive behaviors, burning and cutting himself, suicidal ideations, sexual fetishes, and marital discord, all pre-dating his combat service in Iraq and his misconduct of record.  The Applicant’s medical record and psychiatric treatment notes establish a long history of abuse, molestation, and violence beginning in early childhood, coupled with marital issues, infidelity, and nightmares regarding the death of a friend in a plane crash.  The record documents further that his command redeployed him from Iraq due to mental health concerns of recurrent depression with suicidal ideations and homicidal ideations stemming from separation anxiety from his current girlfriend.  Of note in the mental health clinical notes is the Applicant’s admittance that he was fully aware of the consequences and likely results that would follow when he violated the Commanding Officer’s Order and that he made the choice knowing what would happen if he were caught.  Based on the medical and service documentation of record, the NDRB determined the Applicant’s diagnosed PTSD (non-combat related) was a mitigating and contributing factor associated with his in-service misconduct; however, the NDRB did not consider the issue of PTSD as a reason to absolve completely the Applicant of his misconduct and determined an upgrade to Honorable would not be appropriate.

The Applicant contends that he was misguided in the election of his rights with warnings that he would receive a less honorable discharge if he went to a medical board.  The NDRB reviewed the Applicant’s discharge package to ensure the Applicant was afforded all rights, as required by the Naval Military Personnel Manual (MILPERSMAN).  The Applicant was notified - in writing - of the Command’s intent to process him for administrative separation due to Misconduct (Commission of a Serious Offense) in accordance with Article 1910-142 of the MILPERSMAN and Misconduct (Pattern of Misconduct) in accordance with Article 1910-140.  He was further advised that the least favorable characterization of service possible was General (Under Honorable Conditions) and that is what the command was recommending he receive.  The Applicant elected to exercise his right to consult with a legal defense counsel, which he did.  Following his consultation with counsel, the Applicant elected to waive his right to request a hearing before an administrative discharge board wherein he would be able to challenge the proposed discharge action or the characterization of service to be awarded, if discharged.  The NDRB determined that the Applicant was afforded all rights as afforded by the MILPERSMAN.  As such, the Applicant’s contention is without merit, relief denied.

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 Board for Correction of Naval Records can grant this type of narrative reason change.

The Applicant completed his first enlistment period with an Honorable characterization of his service for that period of service, however, each period of enlistment is an independent obligation, and characterization of service is determined for that specific period.  Characterization of service at discharge is the recognition of a service member’s performance and conduct during a period of enlistment and is not necessarily dependent upon the narrative reason for separation.  When the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under Honorable conditions.  A General (Under Honorable Conditions) discharge is appropriate if the member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance of duties outweigh the positive aspects of the member’s military record.  Based on the evidence of record, the NDRB determined that the Applicant’s willful and deliberate violation of his Commanding Officer’s written order and his willful contempt, disrespect, and indecent language toward the Commanding Officer, coupled with the violation of the written retention-counseling warning, did reflect a significant departure from that conduct expected of a service member.  The Applicant’s misconduct outweighed the positive aspects of his military record; as such, the awarded characterization was appropriate, was equitable, and exceeded the characterization of discharge normally received by others in similar circumstances.  The NDRB voted unanimously that an upgrade of the characterization of service beyond a General (Under Honorable Conditions) characterization was not warranted and that a change in the narrative reason for separation was not warranted.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service and medical record entries, and discharge process, the NDRB determined that 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 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 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