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NAVY | DRB | 2009_Navy | ND0901215
Original file (ND0901215.rtf) Auto-classification: Denied

ex-HTFN, USN
Current Discharge and Applicant’s Request
Application Received: 20090406
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:         US N R (DEP)        20011024 - 20020620     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20020621     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20050128      Highest Rank/Rate: HTFN
Length of Service : Y ear ( s ) M onth ( s ) 08 D a y ( s )
Education Level:        AFQT: 38
Evaluation M arks:         Performance: 4.0 ( 1 )      Behavior: 1.0 ( 1 )        OTA: 2.50

Awards and Decorations ( per DD 214):     

Periods of UA : 20030926-20030928 (2 DAYS); 0600-0700, 20040111 (1 hour)

NJP :
- 20041112 :       Art icle 92 ( Failure to obey a lawful written order )
         Awarded : Susp ended :

S CM :    SPCM:    C C :

Retention Warning Counseling :

- 20041112 :       For your NJP received 20041112 for violation of the UCMJ, Article 92, f ailure to obey a lawful written order (Comply with liberty risk).

Administrative Corrections to the Applicant’s DD 214

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

         “ PATTERN OF MISCONDUCT ”

The NDRB will recommend to the C ommander, 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:           Substance Abuse:                  Criminal Records:       
         Family/Personal Status:           Community Service:                References:     
Additional Statements :
 From Applicant:                  From /To Representat ion :            From /To Congress m ember :         

Oth er Documentation :   

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 25 April 2005, 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 II, Para 211, Regularity of Government Affairs , Part V, Para 502, Propriety and Para 503, Equity .



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

Applicant’s Issues

 1.        Believes his alcohol abuse was a result of his post traumatic stress disorder.
2.       Post-Service Conduct .

Decision

Date: 20 0 9 1105             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall .
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 g overnment al affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) warning , one non - judicial punishment for violation o f the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey a lawful order by not complying with the liberty risk program ) and one unauthorized absence f o r two days. The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived right s to consult with and qualified counsel, submit a written statement . However, the Applicant’s DD Form 215 indicates he was separated based on misconduct (pattern of misconduct) and assigned a separation code of JKA which indicates he was not entitled to an administrative board. In the absence of the administrative separation package and an incomplete service record, the Board applied the presumption of regularity of governmental affairs in determining that the requirements for separation due to a pattern of misconduct were met.

: (Decisional) ( ) . The Applicant is seeking an upgrade to Honorable and contends his abuse of alcohol while on active duty was a symptom of his post traumatic stress disorder (PTSD) rather than misconduct. The Applicant also submitted a letter from the Department of Veterans Affairs (VA) of 06 January 2009, indicating the following: 1) the Applicant ’s friend was shot and killed in his presence while on active duty (locale of mishap unknown), 2) he is a veteran of the Gulf War, 3) he was seen at the VA clinic on an irregular basis for symptoms of PTSD , and 4) met the criteria for PTSD and related depression based upon his military service and received a disability rating of 30%.
The Applicant also contends the PTSD was not diagnosed while he was on active duty. The medical records were not made available to the Board for review and the Applicant has not provided any evidence demonstrat ing that he was exhibiting symptoms of PTSD while on active duty , reported these PTSD symptoms to a military medical provider and was misdiagnosed. After reviewing the evidence of record, statement and documentary evidence submitted by the Applicant, the Board determined that an upgrade is not warranted based on the offenses committed. The Board applauds the Applicant’s service to our country, but has determined that Applicant’s mental disorder (PTSD) did not mitigate or serve as a justification for his misconduct. The evidence of record does not demonstrate the Applicant was not responsible for his actions or should not be held accountable.

Issue 2: (Decisional) ( ) . The Applicant also submitted a character reference from an attorney who indicates that he received treatment for h is psychological difficulties and has proven himself to be an asset to his community and an exemplary citizen. 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 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.

T he Board determined the character statement submitted by the Applicant was not sufficient to form a basis of relief. On page 4, Item 8, i n the instructions for completion of DD Form 293, the Applicant is notified to submit evidence “which substantiate or relate directly to your issues in Item 6.” (Issues: Why an upgrade or change is requested and justification for the request). Additionally, upon receipt of the Applicant’s DD Form 293 , the NDRB mails an acceptance letter that includes the Information Concerning Review Procedures , which discusses the submission of additional documents in paragraph 3, Submission of Evidence, and in the last section on page 4, Information Pertaining to a Review Based Upon Post-Service Conduct . However, even if the Applicant could have produced additional evidence to support a review based on his post-service conduct, the Applicant should be aware that post-service conduct alone does not guarantee an upgrade.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, and d ischarge p rocess, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain .

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, specifically the paragraphs titled Additional Reviews and Automatic Upgrades .



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 Association of Service Disable 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 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 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.

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

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