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NAVY | DRB | 2011_Navy | ND1200312
Original file (ND1200312.rtf) Auto-classification: Denied

ex-AA, USN
Current Discharge and Applicant’s Request

Application Received: 20111130
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

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

Summary of Service
Prior Service:
Inactive:         US N R (DEP)        20000831 - 20000911     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20000912     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20020325      Highest Rank/Rate: AN
Length of Service: Y ear( s ) M onth( s ) 4 D a y ( s )
 Education Level:        AFQT: 39
Evaluation M arks:         Performance: NFIR         Behavior: NFIR   OTA: NFIR
Awards and Decorations ( per DD 214):      ,

Periods of C ONF :

NJP :

- 20011211 :      Article ( Absent without leave - Unauthorized Absence, failure to go to appointed place of duty )
         Article (Failure to obey rule or regulation)
         Awarded: , , ATTEND BEARING SCHOOL      Suspended:

- 20020225 :      Article ( Absent without leave - Unauthorized Absence; absented himself from his unit, without authority, on 20011227 and did remain so absent until 20020219 ( 55 days) - absence terminated by surrender)
         Awarded : No punishment, recommended for administrative separation processing
         Susp ended:

S CM :    SPCM:    C C :      Retention Warning Counseling :

NDRB Documentary Review Conducted (date):        20081022
NDRB Documentary Review Docket Number:   ND08-01497
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.

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

         “ MILPERSMAN 1910-142 ”

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:                  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), Change 31, effective 25 January 2001 until
21 August 2002, Article 1910-142, SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

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 .

C. 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 Article 86 (Unauthorized absence in excess of 30 days) .


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

Applicant’s Issues

 Decisional issues: The Applicant contends T raumatic B rain I njury (TBI) and his mental health issues were not taken into account during separation proceedings and were mitigat ing factors to his misconduct of record .

Decision

Date : 2012 0430 Location: Washington D.C . R epresentation :                                                    

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall .

Discussion

 The NDRB reviewed the Applicant’s personal statement; the Applicant contends that he is suffering from the effects of TBI directly related to his service in the Persian Gulf while deployed in support of Operation IRAQI FREEDOM (OIF) and Operation ENDURING FREEDOM (OEF) . As such, in accordance with U.S. Code, Title 10, Section 1553 (d) (1), the board included a member who is a physician, clinical psychologist, or psychiatrist. Additionally, in accordance with section 1553 (d) (2), the service secretary expedited a final decision and accorded the case sufficient priority to achieve an expedited resolution.

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 discharg e if such change is warranted. In reviewing discharges, the NDRB 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 for o f the Uniform Code of Military Justice (UCMJ): Article ( , : Failure to go to appointed place of duty and absenting himself from his unit, without authority, for 55 days (absence terminated by surrendered ) and Article ( , ). Based on the offenses committed by the Applicant, the command administratively processed for separation . When notified of administrative separation processing using the procedure, the Applicant rights to consult with a qualified counsel, to submit a written statement, or to request an administrative board be held .

: (Decisional) ( ) . The Applicant contends TBI and his mental health issues were not taken into account during separation proceedings and were mitigating factors to his misconduct of record . In support of the Applicant’s contention, he submitted documentation from the VA in which he was diagnosed with Major Depressive Disorder, TBI, and Post-Traumatic Stress Disorder related to his military service. The NDRB carefully considered the Applicant’s medical and service records, his sworn testimony, and the documentation submitted by the Applicant. The NDRB found the Applicant did suffer two falls that resulted in a diagnosis of post - concussive syndrome while in service and forward deployed . The record of service documents that, upon return from deployment, the Applicant was seen and treated at follow-up medical appointments. The treating P hysicians and Psychiatrists also documented that the Applicant’s “ i nsight and judgment are negatively affected by immature, impulsive , and dependent personality traits …patient is fit for full duty, but may not be suitable given nature of his failure to make appointments and his demands in the medical department . ” The evidence of record and testimony document that the Applicant failed to report to duty on time on 27 Dec 2001; for this he was counseled and advised by his chain of command that they would likely seek nonjudicial punishment and possible administrative separation. The Applicant departed his command on that date, without authority, and remained so absent until he surrendered to military authorities on 19 Feb 2002 , thereby terminating his absence of 55 days. During this period of absence, the Applicant was declared a desert er, dropped from the unit’s roll s, and a DD Form 553 (D eserter/Absentee Wanted by the Armed Forces ) was issued seeking the Applicant’s apprehension and return to military custody. T he Applicant surrendered himself for mental health treatment at Naval Mental Health Treatment Facility following a stated suicide attempt; h e was diagnosed with Depressive Disorder , not otherwise specified (NOS), alcohol dependence, antisocial personality disorder with borderline traits , and was found to present a danger of hurting himself.



Violation of Article 86 (Unauthorized absence) - in excess of 30 d ays - is a serious offen s e that would have warranted confinement and a punitive discharge if adjudged at a special or general court-martial. The Applicant’s command chose the more lenient option of nonjudicial punishment (no punishment was awarded) and administrative separation , vice pursuing the punitive effects of a trial by special or general court-martial . While the NDRB recognizes the Applicant’s post-concussive syndrome, mild TBI, and mental health status presented challenges for him, the evidence of record, coupled with the Applicant’s testimony, does not suggest the effect was so severe as to render him incapable of abiding by basic Navy rules and regulations nor does it mitigate the seriousness of his offenses . The NDRB determined the Applicant was responsible for his misconduct. After careful consideration of all evidence presented, the NDRB determined the characterization of service and reason for discharge to be proper and equitable and that n o change is warranted. Relief denied.

Summary : After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord entries, discharge process, and testimony at the personal hearing, the NDRB found Therefore, the awarded characterization of service shall and the narrative reason for separation shall . Having exercised his right to both a document review of his service record and a Personal Appearance Hearing at the NDRB, the Applicant is no longer eligible for a review of his discharge action by the NDRB. The Applicant is directed to the addendum ; specifically , the paragraph regarding Additional Reviews .


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

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