Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: Sanabria, Armando M CIV SECNAVCORB, CORB
Company: NCPB

Docket No. ND15-00926

ex-LT, USNR

Current Discharge and Applicant’s Request

Application Received: 20150331
Characterization of Service Received:  (per DD 214) UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge:  (per DD 214) MISCONDUCT
Reenlistment Code:  N/A
Authority for Discharge:  (corrected) SECNAVINST 1920.6B

Applicant’s Request:	Characterization change to:	HONORABLE
	Narrative Reason change to:	SECRETARIAL AUTHORITY

Summary of Service

Prior Service:
Inactive: NONE		Active:	NONE

Period of Service Under Review:
Date of Appointment:  19911207	Age:  30
Years Contracted:  Indefinite
Date of Discharge:  20000401	Highest Rank:  LT
Length of Service:  08 Year(s)   03  Month(s)   26 Day(s)
Education Level:  16		AFQT:  NFIR
Officer’s Fitness reports:  Available

Awards and Decorations (per DD 214):	NDSM MUC NMCAM NMCCM

Periods of UA/CONF:  NONE

NJP:  1

- 19990112:	Article 133 (Conduct unbecoming an officer and a gentleman)
	Awarded: WRITTEN REPRIMAND  Suspended:  NONE

SCM:  NONE

SPCM:  NONE

CC:  NONE

Retention Warning Counseling:  NONE

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: “08  03  26”
	Block 25, Separation Authority, should read: “SECNAVINST 1920.6B”

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.  Secretary of the Navy Instruction 1920.6B (ADMINISTRATIVE SEPARATION OF OFFICERS), effective 13 December 1999 until 14 December 2005, establishes policies, standards and procedures for the administrative separation of Navy and Marine Corps officers from the naval service in accordance with Title 10, United States Code and DoD Directive 1332.30 of 14 March 1997.

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)(a), Presumption Concerning Court-Martial Specifications.

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

Applicant’s Issues

1.	The Applicant contends that his discharge was improper because the Board Of Inquiry (BOI) that recommended his separation was improperly constituted.
2.	The Applicant contends that the characterization of his discharge was unduly harsh and should be upgraded.
3.	The documentation submitted by the Applicant implies he was suffering from mental health issues while engaged in his documented misconduct.

Decision

Date:  20150709	DOCUMENTARY REVIEW	Location:  Washington D.C.	Representation:  Civilian Counsel

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 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 Board did complete 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 nonjudicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ): Article 133 (Conduct unbecoming an officer and a gentleman).  The record shows the Applicant had and maintained legal counsel from the start of the investigation into his misconduct through his discharge and that he did not appeal his 26 January 1999 letter or reprimand or desire to make a statement for inclusion into his record after his NJP.  On 4 March 1999 the Applicant stated, in writing, that he did not intend to appeal the imposition of NJP and did not, at that time, intend to submit a request for resignation in lieu of administrative separation processing.  Based on the offense(s) committed by the Applicant, he was limited in his duties to chapel based ministry, no longer authorized to engage in counseling, and notified of his command’s recommendation for his administrative separation.  On 25 May 1999 the Chief of Naval Personnel (CNP) notified the Applicant of his requirement to show cause for retention in the Naval Service before a Board of Inquiry (BOI).  On 18 June 1999 the Applicant acknowledged his rights and elected to appear before his BOI.  The Applicant’s BOI unanimously determined that the preponderance of the evidence supported the allegations against him and that separation was warranted.  By a majority vote of two to one the BOI recommended separation with an UNDER OTHER THAN HONORABLE CONDITIONS characterization of service.  The Secretary of the Navy legally reviewed the Applicant’s case, board recommendations, and endorsements of his chain of command and approved the Applicant’s separation on 1 April 2000 with an UNDER OTHER THAN HONORABLE CONDITIONS discharge characterization.

The Applicant’s service record documents the Applicant was diagnosed with an Attention Deficit Hyperactive Disorder (ADHD) and Dysthymic Disorder while serving in the armed forces.  As a result of the Applicant’s implication that a attention deficit disorder and depression impacted his in-service conduct, 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.  

Issue 1:  (Decisional) (Propriety)  RELIEF NOT WARRANTED.  The Applicant contends that his discharge was improper because the Board of Inquiry (BOI) that recommended his separation was improperly constituted.  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.  The evidence of the record and documentary evidence provided by the Applicant did not show harmful error or substantial non-compliance involving the rules and regulations regarding this issue.  The NDRB found that there was neither sufficient, credible documentary evidence showing that proper waivers were not obtained nor that the BOIs composition was prejudicial to the Applicant.  Additionally, the record clearly shows that the Applicant had adequate legal counsel during his questioning for the command investigation into his misconduct, during his NJP proceedings, and during his BOI.  Furthermore, the evidence of record fails to demonstrate that the Applicant contested this as an issue before, during, or after his separation proceedings to include after his defense counsel requested delay in the BOI’s convening date due to a conflict arising from obligations with other clients.  While the Applicant’s counsel annotated he was going to submit a letter of deficiency regarding the outcome of the BOI, no such letter of deficiency was found either in the Applicant’s record of service or in the documentation submitted by the Applicant.  The NDRB found this issue to be without merit.  Relief denied.

Issue 2:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends that the characterization of his discharge was unduly harsh and should be upgraded.  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 Applicant was administratively separated and not separated upon fulfillment of service obligation or voluntary resignation.  The characterization of service was determined by the quality of his total performance of duty and conduct during the current period of service, to include the reason for his separation.  Other considerations were given to his length of service, grade, aptitude, and physical and mental condition.  Based on the Applicant’s record of service, 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, that separation from the Naval Service was appropriate, and the awarded characterization of service was warranted.  Relief denied.

Issue 3:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The documentation submitted by the Applicant implies he was suffering from mental health issues while engaged in his documented misconduct.  The NDRB requested and received the Applicant’s medical treatment records from the Department of Veteran’s Affairs (VA).  The NDRB found that the Applicant had been diagnosed and treated for ADHD, Depression, Adjustment Disorder, and Dysthymic Disorder at various points during his service.  The NDRB noted that at the time of the Applicant’s discharge the only two diagnoses present were ADHD and Dysthymic Disorder, both of which had resolved to the point that the Applicant no longer required medication for treatment.  The NDRB also noted that during the Applicant’s BOI a fellow Chaplin conveyed that the Applicant was receiving mental health services apart from the military at his own expense.  The Applicant’s record also contains a similar written statement from one of the women with whom he is documented as having a relationship with.  When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline.  However, the NDRB did not find that the circumstances surrounding the Applicant’s stated conditions or diagnoses to be of sufficient nature to mitigate or excuse the Applicant’s misconduct.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and service record entries, and discharge 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 MISCONDUCT.

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.

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, or http://www.secnav.navy.mil/mra/bcnr/Pages/default.aspx 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:  Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code.  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 	RESTR - Restriction	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	CBW - 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