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NAVY | DRB | 2010_Navy | ND1001015

Original file (ND1001015.rtf) Auto-classification: Denied

ex-AEAN, USN

Current Discharge and Applicant’s Request

Application Received: 20100309

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)        20000415 - 20000425     Active:          19991116 - 19991207      ELS

Period of Service Under Review:
Date of Current Enlistment: 20000426     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20041015      Highest Rank/Rate: AEAN
Length of Service : Y ear ( s ) M onth ( s ) 20 D a y ( s )
Education Level:        AFQT: 50
Evaluation M arks:         Performance: NFIR         Behavior: NFIR OTA: NFIR

Awards and Decorations ( per DD 214):

Periods of UA /C ONF :
Time Lost (per DD 214): 20030724-20041005, 440 days

NJP :

- 20001009 :      Article (Failure to obey a written order)
         Awarded: Suspended:

S CM :    SPCM:    C C :

Retention Warning Counseling :

- 20001109 :       For failure to obey a written order (underage drinking).

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:                  Oth er Documentation:
                  Additional Statements :
         From Applicant:          From /To Representation:          From /To Congress m ember :

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 30 May 2005, 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. Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 25 April 2005, Article 1910-142, SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

E. 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 (Absence in excess of 30 days) and Article 92.

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

Applicant’s Issues

Decisional issue : The Applicant contends that his youth , immaturity , personal problems, and the strain of adjusting to a large ship were mitigating factors in his misconduct. Additionally, the Applicant contends that his medical condition - undiagnosed Post - Traumatic Stress Disorder (PTSD) - contributed to his misconduct. As such, the Applicant contends that he warrants consideration of mitigating circumstances for upgrading his discharge to General (Under Honorable Conditions) .

Decision

Date: 20 1 1 0616 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 NDRB 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 Applicant submitted one decisional issue for the NDRB’s consideration. Additionally, the NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety. The Applicant provided a dditional documentation for consideration by the N DRB to include a personal statement and letters of character reference from family members.

The Applicant enlisted in the United States Marine Corps at age 18, without waivers to enlistment standards. He received an uncharacterized entry-level separation after 4 training days pursuant to a fraudulent enlistment after admitting to pre-service drug use - marijuana use at least 10 times , with two uses of crack cocaine and heroin additives. Post - discharge from the Marine Corps, the Applicant enlisted in the United States Navy on a four-year enlistment contract . During the process of enlistment with the Navy, the Applicant divulged prior- service drugs use (marijuana, 5 uses) and pre-service psychological counseling for d epression and anger management, post expulsion from h igh s chool. The Applicant was evaluated by appropriately credentialed mental health care providers for eligibility for enlistment and received a waiver to enlistment standards. The Applicant was enlisted subsequently with a guaranteed contract for the S eaman Apprenticeship program with a $5,000.00 bonus .

The Applicant’s official record of service contains one NAVPERS 1070/613 retention- c ounseling warning for violation of lawful orders and regulations and one nonjudicial punishment for violation of Article 92 of the Uniform Code of Military Justice (UCMJ) - failure to obey a written order or regulation, underage consumption of alcohol. The Applicant’s service record also includes a period of unauthorized absence commencing on 24 July 2003 . On or about 2 4 August 2003, the Applicant was declared a deserter from the A rmed F orces and was dropped administratively from the unit’s rolls. The Applicant’s service record documents the date of his return to the control of the A rmed F orces as 05 October 2004 after 4 39 days of unauthorized absence; the service record does not reflect if the Applicant was apprehended or if he surrendered to military control . The Applicant’s official military service record does not contain a copy of his discharge package. However, at some point prior to his discharge, the Applicant’s command determined that his misconduct was serious enough in nature to warrant punitive, vice administrative, action; therefore, they preferred formal charges against the Applicant to trial by court-martial. The Applicant was afforded the right to consult with counsel. The Applicant requested administrative separation for the good of the service to escape the punitive action of a trial by court-martial.

The NDRB presumed regularity in governmental affairs in the absence of a complete separation package. As the Applicant requested separation in lieu of trial by court-martial, certain administrative requirements are mandated as part of the process. Among these, the Applicant was provided a detailed defense counsel. As a function of the separation in lieu of trial process, the Applicant must declare that he understood the elements of the offenses charged against him. Furthermore, the Applicant must admit - in writing - that he was guilty of the offenses charged and that he fully understood that if he was discharged under other

than honorable conditions, that discharge characterization of service may deprive him of virtually all veterans benefits. Finally, the Applicant must also acknowledge that with his discharge, he might encounter substantial prejudice in civilian life in situations where the type of service rendered or the character of discharge received may have a bearing. The Separation Authority approved the Applicant’s reque st for administrative separation in lieu of trial by court-martial; he was subse quently discharged effective 15 October 2004 with an Under Other Than Honorable Conditions characterization of service and an RE-4 reentry code (not recommended for reenlistment).

(Decisional Issues ) (Propriety/Equity ) - NO RELIEF WARRANTED . The Applicant contends that his youth, immaturity, personal problems, and the strain of adjusting to a large ship were mitigating factors in his misconduct. Additionally, the Applicant contends that his medical condition - undiagnosed PTSD - contributed to his misconduct. As such, the Applicant contends that he warrants consideration of mitigating circumstances for upgrading his discharge to General (Under Honorable Conditions).

The NDRB completed a thorough review of the Applicant’s discharge process and determined his discharge met the pertinent standard of equity and propriety. In a signed statement, the Applicant requested an administrative discharge under other than honorable conditions in order to escape the punitive possibilities of a trial by special court-martial. He consulted with qualified counsel and was advised fully of the implications of his request. The Applicant stated – in writing – that he understood that if he was discharged under other than honorable conditions, as proposed, it might deprive him of virtually all veterans' benefits, and he could expect to encounter substantial prejudice in civilian life. The Applicant further acknowledged that he understood the elements of the offense for which he was charged and admitted he was guilty of violating Article 86 of the UCMJ by absenting himself from his unit, without proper authorization, for a period in excess of 30 days. Additionally, d espite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Naval Service in order to maintain proper order and discipline – Unauthorized Absence for 439 days meets this criteria .

The Applicant contends that his youth, immaturity, and personal family problems were underlying, mitigating factors to his misconduct, yet he provided no documentation or explanation in support of this claim. There is credible evidence in the record that the Applicant violated multiple articles of the UCMJ and the Naval Service’s values of honor, courage, and commitment. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct, or that he should not be held accountable for his actions. While it is understood that some members may be less mature than others, the NDRB does not view a member’s claim of immaturity to be a mitigating factor or a sufficient reason for misconduct. Many of our service members are young at the time they enlist for service, but most manage to serve honorably. In the Applicant’s specific case, he had completed basic t raining, enlisted qualification school, had deployed overseas while assigned to a surface combatant, and had been re-assigned to a new ship in his chosen rating, prior to engaging in the misconduct that led to involuntary separation .

The Applicant contends his problems are attribut able to PTSD. 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 NDRB found no medical diagnosis or indicators of PTSD in the record to support the Applicant ’ s claim nor did the Applicant produce any medical diagnosis by competent medical authority to support his claim. Moreover, the Applicant ’ s record reflects a history of depression, suicidal ideations, anger management issues, and compulsive behaviors - existing prior to entry into the military service - documented in his medical record prior to his deployed service. While t he Applicant may feel that his claim of PTSD (undiagnosed) is the underlying cause of his misconduct, the record clearly reflect ed willful misconduct and demonstrated he was unfit for further service .

An Under Other Than Honorable Conditions discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service. The violation of Article 86 for a period in excess of 30 days and Article 92 are serious offenses for which a punitive discharge is authorized. Based on the seriousness of the offenses, the Applicant’s length of service, and his in-service documentation, the NDRB determined that the Applicant’s misconduct involved one or more acts or omissions that constituted a significant departure from the conduct expected of Sailors. The NDRB determined that the characterization of discharge was equitable and that his separation from the Naval Service was consistent with others in similar circumstances . Accordingly, relief denied.

Summary : After a thorough review of the available evidence, to include the Applicant’s summary of service, and medical record entries, and the discharge process, the NDRB determined that 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 Post-Service Conduct .

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), 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.

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

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NAVY | DRB | 2010_Navy | ND1001015

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