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NAVY | DRB | 2013_Navy | ND1300532
Original file (ND1300532.rtf) Auto-classification: Denied

ex-ABEAA, USN
Current Discharge and Applicant’s Request
Application Received: 20130130
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)        19940628 - 19940725     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19940726     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19980130      Highest Rank/Rate: ABEAN
Length of Service: Y ear( s ) M onth( s ) 05 D a y ( s )
 Education Level:        AFQT: 43
Evaluation M arks:         Performance: 2.7 ( 3 )      Behavior: 2.0 ( 3 )        OTA: 2.5

Awards and Decorations ( per DD 214):      (2) (2)

Periods of C ONF :

Time lost per DD214: 19971215 - 19971219, 5 days

NJP :

- 19961114 :      Article (Absence without leave , 3 specifications )
         Article (Failure to obey order or regulation )
         Article (Larceny , steal a knife)
         Article Assault , assault a Chief Petty Officer)
         Article (General A rticle, communicate a threat)
         Awarded: Suspended:

- 19970908 :      Article (Absence without leave , 6 specifications )
         Specification 1: 0700-1940, 19970709 , less than 24 hours
         Specification 2: 0630, 19970710-0815, 19970716, 6 days
         Specification 3 : 0630-0805, 19970717 , less than 24 hours
         Specification 4 : 0630, 19970803-0630, 19970804 , 1 day
         Specification 5 : 0630-1130, 19970805 , less than 24 hours
         Specification 6 : 0830-0915, 19970829 , less than 24 hours
         Article (Failu re to obey order or regulation)
         Awarded : Susp ended:

- 19980109 :      Article (Absence without leave , 2 specifications )
         Awarded: Suspended:

S CM :    SPCM:    C C :



Retention Warning Counseling :

- 19961217 :       For violation of UCMJ Article 86 (F ailure to go to appointed place of duty ) , Article 92 (Vi olate a lawful general order ) , Article 121 ( Larceny ) , and Article 134 (C ommunicating a threat ) .

Administrative Corrections to the Applicant’s DD 214

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

          “ ”
         “ MILPERSMAN 1910-140 ”
         “ 97JUL10-97JUL16; 97AUG03-97AUG04; 97DEC15-97DEC19 ”

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 18, effective 12 December 1997 until 14 December 1998, Article 1910-140, SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.
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 wants an upgrade to be eligible for Department of Veterans Affairs (VA) benefits.
2.       The Applicant contends his discharge was improper and inequitable , because P ost -T raumatic S tress D isorder (PTSD) was the root cause of his misconduct.

Decision

Date : 20 1 3 0529             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 PTSD, 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 stated he was diagnosed with PTSD related to his combat support service aboard the USS THEODORE ROOSEVELT during Operation DELIBERATE FORCE in Bosnia-Herzegovina. The Applicant’s service record documents his participation aboard the USS THEODORE ROOSEVELT in Operation DELIBERATE FORCE from 26 May 1995 to 12 September 1995.

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 . 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 sta ndards of equity and propriety. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) warning and for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave , 11 specifications ), Article 92 ( Failure to obey order or regulation , 2 specifications) , Article 121 (Larceny , 1 specification), Article 128 (Assault , 1 specification), and Article 134 (General A rticle, communicating a threat , 1 specification). Based on the offenses committed by the Applicant, command administratively processed for separation. The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board or a General Court-Martial Convening Authority review . However, his separation code of GKA on his DD Form 214 indicates he appeared before an administrative separa tion board.

: (Nondecisional) The Applicant wants an upgrade t o be eligible for V A benefits. There is no requirement, or law, that grants re-characterization solely on the issue of facilitating access to VA benefits. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities or employment opportunities. Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge. As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.
: (Decisional) ( ) . The Applicant contends his discharge was improper and inequitable, because PTSD was the root cause of his misconduct. 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 requested the Applicant’s medical treatment records, but the VA did not provide them . Furthermore, the NDRB did not find any reference to a medical diagnosis of PTSD in the Applicant’s service record to support his claim, and the Applicant did not provide any documentary evidence of a medical diagnosis by competent medical authorities to support his claim. The record shows that o n 30 January 1998, the Applicant was provided a separation examination by Navy medical authorities and was determi ned to be in good health. Though the Applicant may feel that PTSD was the root 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 not responsible for his conduct , that he should not be held accountable for his actions , or that his misconduct was attributable to the effects of PTSD . Assault, larceny, disobedience of orders and regulations, communicating threats, and absences without leave were all conscious decisions to violate the ten ets of honorable and faithful service. The NDRB determined his PTSD did not mitigate or excuse his misconduct and further determined his discharge was proper, warranted, and equitable. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain . Since 15 years have elapsed since the date of his discharge, the Applicant is not eligible for a personal appearance hearing. The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm.


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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