ex-FA, USN

                  Current Discharge and Applicant’s Request

Application Received: 20090311
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) 19970821 - 19970925   Active:     WNG  19970926 -
20010902

Period of Service Under Review:
Date of Enlistment:  20000530     Age at Enlistment:
Period of Enlistment:   Years   Extension
Date of Discharge:  20020830 Highest Rank/Rate:  FA
Length of Service:   Year(s)     Month(s)   01 Day(s)
Education Level:       AFQT:  35
Evaluation Marks:      Performance:  NFIR    Behavior:  NFIR  OTA:  NFIR

Awards and Decorations (per DD 214):

Periods of UA/CONF:  UA:  0700, 20001013 - 1125, 20020801 (657 days) /
CONF:

NJP:

SCM:

SPCM:

CC:

Retention Warning Counseling:

                    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:           Substance Abuse:
Criminal Records:
      Family/Personal Status:           Community Service:
References:
              Additional Statements:
                             From Applicant:       From Representation:
      From Congress member:

                    Other Documentation:





                          Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October
2002, effective 22 August 2002 until 25 January 2004, 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.

D.  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 violation of the UCMJ, Article 86 (UA).




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

                             Applicant’s Issues

1. Claims that he started suffering from PSTD after boot-camp.


                                  Decision

Date:  20090820        Location:  Washington D.C.  Representation:

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  IN LIEU OF TRIAL BY COURT
MARTIAL.

                                 Discussion

:  ()  . The Applicant contest he started suffering from PSTD, upon his
completion of boot-camp training, which lead to his UA of 657 days, until
his apprehension. The Applicant’s condition of PTSD does not refute the
presumption of regularity in this case.  Two medical documentations’
provided by the Applicant from the department of corrections, does
demonstrate that the Applicant had a mental history of Posttraumatic Stress
Disorder and Depression.  According to this record at age ten, which he
witnessed his older brother shoot and kill his father and wound his mother.
 While awaiting trial in county jail, his brother hung himself.  The
medical record from Brown County Human Services Department, the Applicant
stated to the Psychiatrist “…, he said that he went through posttraumatic
stress disorder as he watched his older brother shoot and kill his father
when the patient was 10 years old.” These two forms of evidence provided by
Applicant do not support his claim of having PTSD following boot-camp.

The command elected to accept the Applicant’s request for an “Under Other
Than Honorable” conditions discharge in lieu of trial by court-martial for
the Article violation mentioned above.  The Applicant was afforded the
opportunity to consult with counsel, but knowingly, intelligently and
willingly waived that right. The Applicant was fully advised of the
implications of his request.  The Applicant understood that if discharged
under other than honorable conditions, it might deprive him of virtually
all veterans' benefits based upon his current enlistment, and that he might
expect to encounter substantial prejudice in civilian life in situations
wherein the type of service rendered in any branch of the Armed Forces, or
the character of discharge received there from may have a bearing.  The
Board determined the awarded discharge characterization was appropriate and
an upgrade would be inappropriate.

For the Applicant’s edification, the NDRB is authorized to consider post-
service factors in the recharacterization of a discharge.  However, there
is no law or regulation, which provides an unfavorable discharge may be
upgraded based solely on the passage of time or good conduct in the
civilian life subsequent to leaving the service.  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 help support a post-service conduct upgrade includes, but is not limited
to: a verifiable continuous employment record; marriage and children’s
birth certificate (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; 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 previous in-service misconduct was an
aberration and not indicative of the member’s overall character.

Besides the Applicant’s DD Form 293, the Applicant provided no
documentation for review.  To warrant an upgrade the Applicant’s post
service efforts need to be more encompassing.  The Applicant could have
produced additional evidence as stated in the above paragraph with the full
understanding completion of these items alone does not guarantee an
upgrade.  Should the Applicant feel his post service conduct becomes
substantial enough to warrant a personal appearance, there are veteran’s
organizations, such as the American Legion, willing to provide guidance to
assist former service members in their efforts to obtain a discharge
upgrade.

Summary:  After a thorough review of the available evidence, to include the
Applicant’s Summary of Service,   Record Entries, Discharge Process, the
Board found    Therefore, the awarded characterization of service shall
remain, Under Other Than Honorable, and the narrative reason for separation
shall remain Misconduct.

After a thorough review of the available evidence, to include the
Applicant’s Summary of Service,   Record Entries, Discharge Process and
evidence submitted by the Applicant, the Board found


                  ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe that 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:  Subsequent to a document review, former members are
eligible for a personal appearance hearing, provided the application is
received at the NDRB within 15 years from the 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.  If a former member has been discharged for more than 15 years,
has already been granted a personal appearance hearing or has otherwise
exhausted his 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 Veterans Administration determines eligibility for
post-service benefits, not the Naval Discharge Review Board.  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 Board for Correction of Naval Records (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 subsequently is processed for an administrative
involuntary separation or is referred to a court martial for misconduct,
the disability evaluation is suspended.  The Physical Evaluation Board case
remains in suspense 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.

Automatic Upgrades - There is no law or regulation, which provides that an
unfavorable discharge may be upgraded based solely on the passage of time
or good conduct in civilian life subsequent to leaving Naval service.  The
NDRB is authorized to consider post-service factors in the
recharacterization of a discharge 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.  Examples of
documentation that may be provided to the NDRB include proof of educational
pursuits, verifiable employment records, documentation of community
service, credible evidence of a substance free lifestyle and certification
of non-involvement with civil authorities.

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