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NAVY | DRB | 2012_Navy | ND1200234

Original file (ND1200234.rtf) Auto-classification: Denied

ex-ITSA, USN

Current Discharge and Applicant’s Request

Application Received: 20111108

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)        20010922 - 20020812     Active:

Period of Service Under Review:
Date of Current Enlistment: 20020813     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20030821      Highest Rank/Rate: ITSA
Length of Service: Year(s) Month(s) 09 D ay(s)
Education Level:        AFQT: 73
Evaluation M arks:         Performance: NFIR         Behavior: NFIR OTA: NFIR

Awards and Decorations ( per DD 214):

Periods of UA /C ONF :

NJP :     SPCM:    CC:      Retention Warning Counseling:

S CM :

- 20030604 :      Article (False official statements)
         Sentence:

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. Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 22 September 2004, Article 1910-120, SEPARATION BY REASON OF CONVENIENCE OF THE GOVERNMENT - PHYSICAL OR MENTAL CONDITIONS.

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 .       The Applicant contends her discharge was inequitable , because it was based on a faulty court-martial conviction in connection with a statement she gave related to a sexual assault complaint.
2 .       The Applicant contends her record of honorable service, as evidenced by a Letter of Appreciation and Certificate of Appreciation, warrants consideration for upgrading her discharge.
3 .       The Applicant contends her post-service conduct, as evidenced by character reference letters, warrants consideration for upgrading her discharge.
4.       NDRB Issue: The assigned Narrative Reason for Separation is improper.

Decision

Date: 20 1 30103             Location: Washington D.C .        R epresentation :

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

Discussion

As a result of the Applicant’s claim of P ost-Traumatic Stress Disorder (P TSD ) , in accordance with U.S. Code, Title X, Section 1553 (d)(1), the Naval Discharge Review Board included a member who is a physician, clinical psychologist, or psychiatrist. 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. A review of the Applicant’s record shows that she did not deploy in support of a contingency operation during her enlistment.

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 summary court-martial for violation of the Uniform Code of Military Justice (UCMJ): Article 107 (False official statement, 1 specification). On 11 July 2003, a qualified medical officer diagnosed the Applicant with PTSD and Major Depressive Disorder and recommended she be separated from the Navy. Based on th ese diagnoses and the recommendation for separation, her command administratively processed her for separation. When notified of administrative separation processing for Condition, Not a Disability and Misconduct (Serious Offense) using the procedure, the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review.

: (Decisional) ( ) . The Applicant contends her discharge was inequitable , because it was based on a faulty court-martial conviction in connection with a statement she gave related to a sexual assault complaint. She contends she did not provide a false statement but pled guilty at the advice of her attorney. She further contends there was confusion related to her statement due to her re-experiencing pre-service traumatic events at the time of the in-service assault, and this confusion was mistaken by the authorities as a false statement. The NDRB conducted a thorough review of the Applicant’s service and medical records and the substantial documentation provided by the Applicant and found no basis to upgrade her characterization of service. She pled guilty at a summary court-martial as part of a plea agreement that prevented her from having charges referred to a special court-martial. Documentation in the records reveals that she knowingly and willingly pled guilty and understood the consequences. Despite her contentions that she did not provide false statements and confused pre-service traumatic experiences with the in-service assault, and after reviewing the medical documentation provided by the Applicant, the NDRB determined her conviction at summary court-martial was proper and appropriate and that relief based on this issue is not warranted. Relief denied.

Issue 2: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends her record of honorable service, as evidenced by a Letter of Appreciation and Certificate of Appreciation, warrants consideration for upgrading her discharge. During the Applicant’s 12 months of service, she pled guilty at a summary court-martial for violating UCMJ Article 107 (False official statements). While this serious offense warrants processing for separation, she was also notified of separation

processing due to Condition, Not a Disability. The Separation Authority ultimately determined to discharge her for this reason. Per Naval Military Personnel Manual (MILPERSMAN) , (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 22 September 2004, Article 1910-120, SEPARATION BY REASON OF CONVENIENCE OF THE GOVERNMENT - PHYSICAL OR MENTAL CONDITIONS, characterization of service should be Honorable, unless an Entry Level Separation or General (Under Honorable Conditions) is warranted. The Applicant served greater than 180 days of continuous active duty service and so an Uncharacterized (Entry Level Separation) characterization of service is not appropriate. Per MILPERSMAN Article 1910-304, a n Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for Naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. With the summary court-martial conviction, the NDRB determined the Applicant’s characterization of service was equitable. Relief denied.

Issue 3 : (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends her post-service conduct, as evidenced by character reference letters, warrants consideration for upgrading her discharge. The NDRB considers 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. The Applicant provided a personal statement and 14 character reference letters. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum , however, completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration. T he Board determined the characterization of service was appropriate considering the length of service and UCMJ violations. Relief denied.

Issue 4: (NDRB Issue) (Decisional) (Propriety) The assigned Narrative Reason for Separation is improper . On 11 July 2003, a qualified medical officer diagnosed the Applicant with PTSD that existed pre-service but was service - aggravated. The medical officer also diagnosed the Applicant with Major Depressive Disorder and recommended administrative separation from the Navy. While notified of administrative separation processing for Misconduct (Serious Offense) and Condition, Not a Disability, her command discharged her under MILPERSMAN Article 1910-120, which pertains to separations based on mental or physical conditions that do not amount to a disability. The diagnoses of service-aggravated PTSD and Major Depressive Disorder, however, do not fall under this article, and so the NDRB determined the assignment of this Narrative Reason for Separation was improper. Therefore, the NDRB voted unanimously to change the Narrative Reason for Separation to Secretarial Authority. In its review, the NDRB noted the Applicant’s diagnosed PTSD warranted consideration by the Physical Evaluation Board had she not been processed for misconduct. Per regulations, separation processing for misconduct , which was one of the two reasons the Navy initiated separation processing, supersedes a disability separation.

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 the discharge was warranted and equitable but the Narrative Reason for Separation was improper. Therefore, the awarded characterization of service shall remain GENERAL (UNDER HONORABLE CONDITIONS) but the N arrative R eason for S eparation shall change to SECRETARIAL AUTHORITY . 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 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 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 | 2012_Navy | ND1200234

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