ex-MMFR, USN

Current Discharge and Applicant’s Request

Application Received: 20141119
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)	20100721 - 20101024  	Active:	

Period of Service Under Review:

Date of Current Enlistment:  20101025	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20120816	Highest Rank/Rate:  MMFA
Length of Service:   Year(s)     Month(s)   23 Day(s)
Education Level:  	AFQT:  46
Evaluation Marks:	Performance:  2.0 (2)	Behavior:  1.0 (2)	OTA:  1.91

Awards and Decorations (per DD 214):	 

NJP:  

- 20120309:	Article  (Absence without leave)
	Specification 1:  Did on or about 9 February 2012, without authority, absent himself from his unit, and did remain so absent until on or about 24 February 2012, 15 days.
	Specification 2:  Did on or about 26 February 2012, without authority, absent himself from his unit, and did remain so absent until on or about 6 March 2012, 9 days.
	Awarded:     Suspended:   (Vacated due to further misconduct on 20120321)

- 20120321:	Article  (Absence without leave; Did on or about 16 March 2012 through 20 March 2012, on divers occasions, without authority, fail to go at the time prescribed to his appointed place of duty, to wit:  restriction personnel muster at 1100, 16 March 2012; 1600, 16 March 2012; 1100, 18 March 2012; 2130, 18 March 2012; 0600, and 0600, 20 March 2012.) 
	Awarded:   Suspended:   

- 20120405:	Article  (Absence without leave; Did on or about 22 March 2012 through 03 April 2012, on divers occasions, without authority, fail to go at the time prescribed to his appointed place of duty, to wit:  restriction personnel muster at 1100, 22 March 2012; 1100, 25 March 2012; 0600, 29 March 2012; 1100, 1 April 2012; 0600, 3 April 2012; and 1100, 3 April 2012.) 
	Awarded:   Suspended:   
 
- 20120629:	Article  (Absence without leave, 2 specifications)
	Specification 1:  Did on or about 10 April 2012, without authority, absent himself from his unit, and did remain so absent until on or about 16 April 2012, 6 days.
	Specification 2:  Did on or about 31 May 2012, without authority, absent himself from his unit, and did remain so absent until on or about 20 June 2012, 21 days.
	Awarded:     Suspended:   

Periods of UA:  0700, 20120422 – 1500, 20120425, 3 days; 0700, 20120430 – 0800, 20120507, 7 days

Periods of CONF:  

SCM:  

SPCM:  

CC:  

Retention Warning Counseling:  

- 20120309:	For Article 86 (Absence without leave)

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 1910-140, 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 IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications.

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

Applicant’s Issues

1.    The Applicant seeks and upgrade for VA medical benefits. 
2.	The Applicant contends that he should have been medically discharged because he could not perform his duties like a “normal” person. 

Decision

Date:  20150416		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 that a MENTAL HEALTH DIAGNOSIS impacted their discharge, and in accordance with U.S. Code, Title X, Section 1553 (e)(2), the Naval Discharge Review Board included a member who is a physician, clinical psychologist, or psychiatrist.  The Applicant’s service record does not document that the Applicant was diagnosed with a mental health disorder while serving in the armed forces.  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 included  NAVPERS 1070/613 (Page 13) warnings,   for  of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, 7 specifications).  Based on the offense(s) committed by the Applicant,  command administratively processed  for separation.  When notified of administrative separation processing using the  procedure, the Applicant waived  rights to consult with a qualified counsel, submit a written statement, and request an administrative board.

:  (Nondecisional)   The Applicant seeks and upgrade for VA medical 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.  Furthermore, DoD disability regulations do not preclude a disciplinary separation.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.    

:  (Decisional) ()  .  The Applicant contends that he should have been medically discharged because he could not perform his duties like a “normal” person.  The Applicant states in his letter submitted to the NDRB that his mental health issues began in basic training as it was difficult for him “to stay alert and stay awake, anxieties, depression, panic attacks, insomnia, sleep apnea, and even bouts of hallucinations, began”.  The Applicant also submits a letter from the Montowood Medical Center dated 09/12/2014 which states that he has been diagnosed with schizoaffective disorder and depression.  The NDRB requested the Applicant’s medical treatment records, but the VA was unable to locate them.  Furthermore, the NDRB did not find any reference to a medical diagnosis of any symptoms claimed by the Applicant in his service record to support his claim, and except for the previously stated letter, the Applicant did not provide any documentary evidence of a medical diagnosis by competent in-service medical authorities to support his claim. 

When reviewing the discharge, the NDRB did consider the extent to which a medical problem might affect the Applicant’s performance and ability to conform to the military’s standards of conduct and discipline.  However, the NDRB generally does not consider the circumstances surrounding the Applicant’s stated condition or diagnosis to be of sufficient nature to excuse the Applicant’s misconduct.  The Applicant had several incidents of misconduct that were well outside of the expectation of honorable and faithful service.  During the separation proceedings, the Applicant waived his right to consult with counsel, request a hearing before an Administrative Separation Board, and submit a rebuttal to the separation.  If the Applicant believed there were mitigating circumstances, it was his obligation to contest those charges at the time they were made.  During an Administrative Separation Board, he would have had the opportunity to mount a defense against the charges.  A preponderance of the evidence reviewed supports the conclusion that the Applicant committed a pattern of misconduct, that separation from the Naval Service was appropriate, and that a Under Other than Honorable Conditions discharge was warranted.  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 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  discharge.  The Applicant is directed to the Addendum for additional information.

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