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NAVY | DRB | 2012_Navy | ND1200487
Original file (ND1200487.rtf) Auto-classification: Denied

ex-AOAN, USN
Current Discharge and Applicant’s Request
Application Received: 20120105
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)        20050728 - 20050809     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20050810     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20100122      Highest Rank/Rate: AOAN
Length of Service: Year(s) Month(s) 13 D ay(s)
Education Level:        AFQT: 38
Evaluation M arks:         Performance: 3.4 ( 5 )      Behavior: 3.0 ( 5 )        OTA: 3.30
Awards and Decorations ( per DD 214):      Rifle (2)

Periods of UA /C ONF :

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

Administrative Corrections to the Applicant’s DD 214
The NDRB did note administrative error(s) on the original DD Form 214:

         “ MISCONDUCT (SERIOUS OFFENSE) ”

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 29, effective 10 November 2009 until 17 August 2011, 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 UCMJ A rticle 128 (Assault) .


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

Applicant’s Issues

 1.        Applicant seeks a discharge upgrade to obtain veteran benefits.
2.       Applicant seeks a discharge upgrade to improve employment opportunities.
3.       Applicant contends his discharge was inequitable compared to his record of service.
4.       Applicant contends that if P ost- T raumatic S tress D isorder (PT SD ) and M ajor D epressive D isorder (M DD ) would have been identified earlier, it would have prevented the misconduct for which he was separated.
Decision

Date : 20 1 2 05 10             Location: Washington D.C .        R epresentation :

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

Discussion

 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. The Applicant’s records are incomplete, however, evidence suggests the Applicant deployed at least twice aboard the USS Nimitz in support of Operation Enduring Freedom and Operation Iraqi Freedom .

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 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 identif ied two decisional issues for the Board ’s consideration . Although the Applicant’s service records are incomplete (missing administrative separation documentation to include: notification of administrative separation and acknowledgment of rights forms and the commanding officer comments and endorsement), the Board completed a thorough review of the available documentation to determine whether discharge met the pertinent standards of equity and propriety. The Applicant’s record of service did not include any NAVPERS 1070/613 (Page 13) retention warnings, commanding officer nonjudicial punishment (NJP) , or trial by courts-martial. The records indicate the Applicant was involved in two alcohol - related incidents (a port-call liberty incident involving urination into a trash can, and an ER Department referral due to public intoxication near his berthing area). The Applicant’s service record also reflected a below average Evaluation and Counseling Report for the period 23 December 2009 - 4 January 2010 . However, there is no documentation within the record to indicate what event(s) or incident(s) transpired to warrant the Applicant’s below average evaluation or subsequent processing for administrative separation (the Applicant, in his letter to the NDRB, references an argument with a fellow shipmate that progressed into an altercation ; this incident was also briefly referenced in a medical evaluation report dated 18 December 2009) . Since the NDRB did not have the Applicant’s administrative separation package documentation available, it could not determine whether the Applicant exercised or waived his rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review .

On 1 Jan 2010, the Commanding Officer, USS Nimitz directed that the Applicant be separated from the Navy with a General (Under Honorable Conditions) discharge due to Misconduct (Commission of a Serious Offense). On 18 Jan 2010, while assigned to the Transient Personnel Unit (TPU) San Diego, the Applicant was questioned by an investigator regarding loss of hi s military identification card. On 21 Jan 2010, the Applicant received a Page 13 counseling, which stated , “Recommendation for advancement and retention in the Naval Service has been withdrawn this date due to substandard performance as documented on Evaluation Report and Counseling Record for the period 09DEC23 to 10JAN04 . ” The Evaluation Report was located within the Applicant’s service records and reflected an overall trait average (OTA) of 2.50, with the following remarks: “Submitted upon administrative separation from U.S. Naval Service…Does not uphold Navy Core Values of Honor, Courage, and Commitment…not recommended for advancement or retention . ” The Applicant was subsequently separated from the Navy on 22 Jan 2010 as directed by the Separation Authority.


: (Nondecisional) The Applicant seeks a discharge upgrade to obtain veteran 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.
: (Nondecisional) The Applicant seeks a discharge upgrade to improve employment opportunities. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities as r egulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.
: (Decisional) ( ) . The Applicant contends his discharge was inequitable compared to his record of service. The NDRB conducted a detailed examination of the Applicant’s records to determine whether his discharge met the pertinent standards for propriety and equity. The A pplicant’s record of service did not contain any NAVPERS 1070/613 (Page 13) retention warnings, commanding officer nonjudicial punishment (NJP) , or trial by courts-martial. However, the records do indicate the Applicant was involved in two alcohol - related incidents and had his recommendation for advancement and retention withdrawn . An entry within the Applicant’s medical record and his personal letter to the NDRB both reference an argument with a fellow shipmate that progressed into an altercation that resulted in the Applicant being referred to a Disciplinary Review Board. Lastly, the Applicant was administratively discharged due to Misconduct ( Commission of a Serious Offense ), which, if adjudicated at trial by court-martial (Special or General), could have resulted in confinement and a B ad C onduct D ischarge . Per the Nav al Military Personnel Manual , a Sailor may be awarded a General (Under Honorable Conditions) discharge if the member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance outweigh positive aspects of the member’s military record. After careful consideration of all the available evidence , which included documented alcohol - related incidents , the physical altercation with a fellow Sailor, and the narrative reason for separation l isted on the Applicant’s DD Form 214, the Board concluded that the Applicant’s General (Under Honorable Conditions) discharge was equitable and in accordance with the applicable orders and directives in effect at the time of his discharge. Relief denied.
Issue 4 : (Decisional) ( ) . The Applicant contends that if PTSD and MDD would have been identified earlier, it would have prevented the misconduct for which he was separated. Documentation within the Applicant’s VA health records indicate he received post-discharge hospitaliz ation and psychiatric evaluation from 28 July - 12 August 2011 in San Diego, CA. The Applicant’s VA hospital discharge diagnosis was listed as Major Depressive Disorder, with an additional diagnosis of PTSD. However, in a VA Decision Letter , dated 27 Dec 2011 , the VA denied service connection for PTSD, stating , “while a review of your post-service VAMC San Diego treatment records did note a history of PTSD and discuss PTSD symptoms, and you submitted written statements, from (name s deleted) and yourself, that noted PTSD as well, received 16 September 2011 and 17 November 2011, a review of your service treatment records did not show a diagnosis of PTSD, and, at the current VA mental examination, dated 7 December 2011, the examiner provided a medical evaluation and determination of your mental condition, and came to a decision that there was no diagnosis of PTSD, but found and provided an AXIS I diagnosis of major depressive disorder instead. As a result , we may not establish service connection for PTSD at this time . ” Additional documentation indicates the Applicant was awarded VA compensation for MDD (70%).

Although diagnosed with MDD, the Board could find no evidence within the records nor did the Applicant provide any evidence to indicate that he was not responsible for his conduct due to his MDD or that he should not be held accountable for his actions. After a thorough review of the records, supporting documents, facts and circumstances unique to this case, the NDRB discerned that the Applicant’s issue did not provide a basis for which relief could be granted. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice , medical and r ecord e ntries, 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 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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