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NAVY | DRB | 2012_Navy | ND1200704
Original file (ND1200704.rtf) Auto-classification: Denied

ex-STGSN, USN
Current Discharge and Applicant’s Request
Application Received: 20120206
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)        20030307 - 20031119     Active:   20031120 - 20071118 HON

Period of Service Under Review:
 Date of Current Enlistment: 20071119     Age at Enlistment: 24
Period of E nlistment : Years Extension
Date of Discharge: 20100611      Highest Rank/Rate: STG3
Length of Service: 2 Year(s) 6 Month(s) 24 D ay(s)
 Education Level: 12      AFQT: 81
Evaluation M arks:         Performance: 3.4 ( 5 )      Behavior: 2.4 ( 5 )        OTA: 2.97

Awards and Decorations ( per DD 214):      Rifle Pistol (3) (2) NEM (2)

Periods of UA /C ONF :

NJP :

- 20100319 :      Article (Insubordinate conduct toward warrant officer)
         Article (Assault)
         Awarded: Suspended:

S CM :    SPCM:             Retention Warning Counseling:

C C :

- 20100121 :       Offense: Malicious Wounding (Felony) and Abduction (Felony)
         Sentence : NFIR

Administrative Corrections to the Applicant’s DD 214

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

          “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 20031120 UNTIL 20071118 ”
          “ ”
          “ ”
         
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:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

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 the UCMJ, Article s 91 and 128.



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

Applicant’s Issues

 1.       The Applicant requests an upgrade to qualify for GI Bill benefits and employment opportunities.
2.       The Applicant contends his misconduct was an isolated event in an otherwise honorable period of service.
 3 .       The Applicant contends he should have been medically discharged instea d of being administratively separated.
4 .       The Applicant contends his Nonjudicial Punishment ( NJP ) proceedings were unjust and without due process.
 5 .       The Applicant contends his misconduct was due to personal problems.

Decision

Date: 20 1 30307             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 ) symptoms , 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 NDRB reviewed the Applicant’s personal statement; the Applicant stated that he was diagnosed with PTSD related to his service in Afghanistan and Guantanamo Bay, Cuba. The Applicant’s service record documents completion of a deployment in support of Navy Expeditionary Guard Battalion, Joint Task Force, Guantanamo from N ovember 2006 to M ay 2007 and a deployment to Afghanistan in support of Operation ENDURING FREEDOM from 30 J une 2008 to 5 J anuary 2009.

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. T he Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included NJP for o f the Uniform Code of Military Justice (UCMJ): Article 91 ( Insubordinate conduct toward a warrant officer, 1 specification) and Article 128 ( Assault, 1 specification ) and civilian conviction for felon y malicious wounding and abduction. Based on the offenses committed by the Applicant, command administratively processed for separation. The Applicant’s record reflects two notifications via the administrative board procedure for administrative separation processing. When notified of administrative separation processing using the procedure on 19 M arch 2010 , the Applicant exercised rights to consult with a qualified counsel, submit a written statement, and request an administrative board . However, when notified of administrative separation processing using the procedure on 14 A pril 2010 for Misconduct (Serious Offense) and Misconduct (Civil Conviction) , the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board. The Applicant’s record reflect ed no explanation for the difference or why the Applicant was notified twice for administrative separation processing .

In addition to the Applicant’s DD Form 293, on 20 February 2013, the NDRB received and reviewed an additional statement from the Applicant and further documentation from his service and medical records.
: (Nondecisional) The Applicant requests an upgrade to qualify for GI Bill benefits and employment 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. 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 re-characterization 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.

: (Decisional) ( ) . The Applicant contends his misconduct was an isolated event in an otherwise honorable period of service. The Applicant received an Honorable discharge for his first enlistment from November 2003 to November 2007. Each period of enlistment is an independent obligation and characterization is determined for that specific period of time. In his second enlistment, the Applicant had a civil conviction and was found guilty at an NJP of committing the serious offenses of assault and insubordinate conduct toward a warrant officer. Despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the to maintain proper order and discipline. Violation of Article s 91 and 128 are two such offenses that warrant administrative separation processing regar dless of grade, performance, enlistments, deployments, or time in service. This usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. However, his command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. The NDRB found the characterization of discharge was equitable and consistent with the characterization of discharge given others in similar c ircumstances. Relief denied.

: (Decisional) ( ) . The Applicant contends he should have been medically discharged instead of being administratively separated. T he NDRB did not find any reference to a medical diagnosis of PTSD in the Applicant’s record s to support his claim . The Applicant provided a statement from a Licensed Clinical Psychologist (LCP) who observed him in at the military hospital in Landstuhl, Germany. The LCP stated that while he “did not personally complete a full psychological at the time, he displayed many characteristics of PTSD.” The Applicant also submitted a record of an in-service visit to the Naval Medical Center Portsmouth Outpatient Psychiatric Center on 8 January 2009, where his health care provider documented his initial impressions of an Axis I diagnosis of Anxiety Disorder, Not Otherwise Specified, R/O PTSD. R/O PTSD means “rule out” PTSD , is not a diagnosis of PTSD , and is a recommendation from the health care provider to conduct more analysis to determine if the Applicant has PTSD . Although the Applicant may feel PTSD symptoms were the underlying cause of his misconduct, the record reflects willful misconduct that demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. D epartment of Defense regulations provide that disciplinary separations supersede disability separations. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Also, the initiation and submission of medical boards are at the discretion of the individual physician. There is no indication in the evidence of record or in the documentation submitted by the Applicant that the Applicant was recommended for or processed for a medical board by proper authority. While it appears he may have been considered for separation due to Adjustment Disorder, which is considered a Condition, Not a Disability, his misconduct took precedence and properly led to his discharge. After a review of the Applicant’s records, the NDRB determined PTSD and other mental issues did not mitigate his misconduct and de termined his discharge was proper , and equitable . Relief denied.

Issue 4 : (Decisional) ( ) . The Applicant contends his NJP proceedings were unjust and without due process. T he Applicant did submit an appeal to his NJP , which was addressed and found to be without merit after proper review by Commander, Navy Region Mid-Atlantic. During the separation proceedings, the Applicant waived his right s to consult with counsel, request a hearing before an Administrative Separation Board, and submit a rebuttal to the separation. If the Applicant believed there were mitigating circumstances, it was his obligation to contest those charges at the time they were made. During an Administrative Separation Board, he would have had the opportunity to mount a defense against the charges. The Applicant submitted no evidence to support his contention, therefore, the NDRB relied upon the presumption of regularity in the conduct of government affairs. Relief denied.
Issue 5 : (Decisional) ( ) . The Applicant contends the characterization of his discharge should be upgraded , because he suffered a lot of setbacks due to his PTSD - related experiences, failing marriage, financial status, and social withdrawal from his command. The NDRB recognizes that serving in the military is challenging. Most service members, however, serve honorably and therefore earn their Honorable discharges. In fairness to those service members, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. Furthermore, in determining discharge characterization of service, the Applicant’s conduct forms the primary basis for consideration. The Applicant’s in-service conduct incl uded one NJP for insubordinate conduct and assault and a civilian conviction for malicious wounding and abduction. After a complete review of the records, the NDRB determined his personal problems did not mitigate his misconduct and determined his discharge was proper and equitable. Relief denied.

 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 15 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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