ex-OS2, USN

Current Discharge and Applicant’s Request

Application Received: 20140226
Characterization of Service Received:   
Narrative Reason for Discharge:    
Authority for Discharge:   MILPERSMAN 

Applicant’s Request:	Characterization change to:	
	Narrative Reason change to:	

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	20040623 - 20040709  	Active:	 20040914 - 20081211 HON
	USNR (DEP)	20040826 - 20040913  

Period of Service Under Review:
Date of Current Enlistment:  20081212	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20111031	Highest Rank/Rate:  OS2
Length of Service:   Year(s)     Month(s)   19 Day(s)
Education Level:  	AFQT:  63
Evaluation Marks:	Performance:  4.5 (2)	Behavior:  4.0 (2)	OTA:  4.06

Awards and Decorations (per DD 215):	Rifle     (2)  (2) AAM        LoC EEWS

Periods of UA/CONF:  UA: 20110824-20111004, 44 days.  CONF: 

NJP:    	SCM:    	SPCM:    		CC:    	Retention Warning Counseling:  

NDRB Documentary Review Conducted (date):	20130724
NDRB Documentary Review Docket Number:	ND13-00367
NDRB Documentary Review Findings:		Proper as issued and that no change is warranted.

Administrative Corrections to the Applicant’s DD 214
Pending results of hearing

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

	  “”
	
The NDRB will recommend to the Commander, Navy Personnel Command, PERS-312A, 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:	

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

Applicant’s Issues

1.	The Applicant contends his in-service achievements and deployments warrant consideration for an upgrade.
2.	The Applicant contends mental health issues, to include Post-Traumatic Stress Disorder (PTSD), led to his misconduct.
3.	The Applicant contends a lack of leadership and support at his last command mitigate his misconduct.
4.	The Applicant contends his post-service conduct warrants consideration for an upgrade.

Decision

Date:  20140818		Location:  Washington D.C.	Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  .

Discussion

As a result of the Applicant’s claim of PTSD, in accordance with U.S. Code, Title X, Section 1553 (d)(1), the Naval Discharge Review 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 Applicant’s service record documents completion of a deployment to Iraq from 28 October 2007 to 28 October 2008 conducting detainee operations in support of Operation IRAQI FREEDOM and a deployment to Djibouti, Africa from October 2009 to April 2011 conducting port operations in support of Operation ENDURING FREEDOM.

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 Board did complete a thorough review of the circumstances that led to  discharge and the discharge process to ensure  discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service in his current enlistment included no NAVPERS 1070/613 (Page 13) warnings and no misconduct resulting in nonjudicial punishment or court-martial.  However, the Applicant did enter into an unauthorized absence status for 44 days until he turned himself in at the Navy Operations Support Center, Erie, PA.  Facing a charge of violating Uniform Code of Military Justice Article 86 (Absence without leave) at a Special Court-Martial, the Applicant requested separation in lieu of trial by court-martial.  In order to request such a discharge, the Applicant must acknowledge that his counsel fully explained the elements of the offense for which he was charged and that he was guilty of that offense.  The Applicant must have certified a complete understanding of the negative consequences of his actions and acknowledge that his characterization of service could be Under Other Than Honorable Conditions, which might deprive him of virtually all veterans benefits based upon his current enlistment.  The Navy accepted his request and administratively separated him Under Other Than Honorable Conditions on 31 October 2011.

:  (Decisional) ()  .  The Applicant contends his in-service achievements and deployments warrant consideration for an upgrade.  The Applicant received an Honorable characterization for his first enlistment.  Each period of enlistment is an independent obligation and characterization is determined for that specific period of time.  The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service.  The NDRB noted the Applicant’s command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge agreed upon in the Applicant’s separation in lieu of trial agreement.  Based on the Applicant’s record of service in his current enlistment, the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service, and the characterization of service as outlined in the Applicant’s separation in lieu of trial agreement was warranted.   Relief denied.

:  (Decisional) ()  .  The Applicant contends mental health issues, to include PTSD, led to his misconduct.  The Applicant provided a Department of Veterans Affairs (VA) summary of his service-connected conditions that included a 70 percent rating for PTSD.  When reviewing a discharge, the NDRB does consider the extent to which a mental health problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline.  The NDRB requested the Applicant’s in-service and post-service medical treatment records, but the VA was unable to locate them.  Furthermore, the NDRB did not find any reference to a medical diagnosis of PTSD in the Applicant’s incomplete service record to support his claim.  The NDRB determined the single summary sheet of service-connected disabilities that the Applicant provided was insufficient to provide mitigation to support his claim.  Though the Applicant may feel that his mental health conditions were the underlying cause of his misconduct, the record reflects willful misconduct that demonstrated he was unfit for further service.  The evidence of record did not show that he was either not responsible for his conduct or that he should not be held accountable for his actions.  Additionally, there is no evidence in the record, nor did the Applicant provide any evidence, to indicate he attempted to use the numerous services available for service members who undergo personal problems during their enlistments such as the Navy Chaplain, Medical or Mental Health professionals, or even Family Advocacy Programs prior to his misconduct.  The NDRB determined mental health issues, to include PTSD, did not mitigate his misconduct, and his discharge was proper and equitable.  Relief denied.

:  (Decisional) ()  .  The Applicant contends a lack of leadership and support at his last command mitigate his misconduct.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that his command failed to provide leadership and support to him as he joined the command.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  Relief denied.

4:  (Decisional) ()  .  The Applicant contends his post-service conduct warrants consideration for an upgrade.  The NDRB considers 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.  The Applicant provided a personal statement, evidence of financial stability and continuous employment as a Realtor, evidence of community involvement through public service organizations such as the Freemasons, and three character references.  After reviewing the post-service documentation and taking into consideration his oral testimony, the NDRB determined the characterization of service received was appropriate considering the length of service and UCMJ violation.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and discharge process, the Board found   Therefore, the awarded characterization of service shall   and the narrative reason for separation shall remain .  The Applicant is not eligible for further reviews by the NDRB.  The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149.  Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm.  The Applicant is directed to the Addendum for additional information.

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 31 May 2005 until Present, Article 1910-106, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications.

C.  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 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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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