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NAVY | DRB | 2013_Navy | ND1301248

Original file (ND1301248.rtf) Auto-classification: Denied

ex-AN, USN

Current Discharge and Applicant’s Request

Application Received: 20130515

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to:       FOR THE CONVENIENCE OF THE GOVERNMENT

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        20040121 - 20041017     Active:

Period of Service Under Review:
Date of Current Enlistment: 20041018     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20061110      Highest Rank/Rate: AN
Length of Service: Y ear( s ) M onth( s ) 24 D a y ( s )
Education Level:        AFQT: 61
Evaluation M arks:         Performance: 2.0 ( 1 )      Behavior: 2.0 ( 1 )        OTA: 2.0

Awards and Decorations ( per DD 214):

NJP :

- 20060808 :      Article (Absence without leave , 5 specifications )
         Awarded: Suspended:

S CM :

- 20060921 :       Art icle (Assault , 2 specifications )
         Art icle (General A rticle, threat, communicating)
         Sentence : 21 days ( 20060921-20061008, 18 days)

SPCM:    C C :

Retention Warning Counseling :

- 20060810 :       For your display of poor judgment, poor impulse control, personal irresponsibility , specifically, misconduct due to absence without leave, as evidenced by CO’s NJP on 20060808.

Administrative Corrections to the Applicant’s DD 214

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

         “ MISCONDUCT ”

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 11, effective 26 April 2005 until 11 June 2008, 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 128 and 134 .

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

Applicant’s Issues

1.        The Applicant seeks to improve his employment and educational opportunities.
2.       The Applicant contends his Post-Traumatic Stress Disorder ( PTSD ) and Traumatic Brain Injury ( TBI ) were not considered as mitigating factors.
3 .       The Applicant contends 10 U.S.C. § 1177 constitutes a substantial enhancement of rights for service members with PTSD or TBI diagnos e s.

Decision

Date : 20 1 3 1016             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 and TBI, 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 deployed on the USS CARL VINSON (CVN 70) to the Arabian Gulf in support of 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’s record of service included NAVPERS 1070/613 (Page 13) warning, for o f the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, 5 specifications) , and for of the UCMJ: Article 128 (Assault, 2 specifications) and Article 134 (General A rticle, threat, communicating). Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing for Misconduct (Serious Offense) and Misconduct (Pattern of Misconduct) 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 .

: (Nondecisional) The Applicant seeks to improve his employment and 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.

Issues 2-3 : (Decisional) ( ) . The Applicant contends his PTSD and TBI were not considered as mitigating factors. He also contends 10 U.S.C. § 1177 constitutes a substantial enhancement of rights for service members with PTSD or TBI diagnoses. A review of the records reveals that a mental health evaluation on 10 March 2006 (the day after the Applicant stated his TBI occurred) state d the Applicant assaulted a few friends previously while on cruise when they tried to wake him up. In addition, the psychologist suggest ed the patient was stable and responsible for his own actions. Since this mental health evaluation documents the Applicant had a history of assaulting others prior to his TBI and was assessed by competent medical authority to be responsible for his own actions , the NDRB determined his TBI was not an underlying cause of his misconduct. On 25 August 2006, a clinical psychologist from Naval Medical Center Portsmouth diagnosed the Applicant with Adjustment Disorder with Depressed Mood. This mental health evaluation annotate d that the Applicant attributed his symptoms to a history of child abuse and he believed he was being treated for depression and PTSD resulting from childhood abuse. The record also states, “he was heavily involved with the drug culture between the ages of 14 and 17 , ” even though he denied any illicit drug use on his DD Form 2807-1 that he signed on 09 December 2003 as part of the enlistment process . The medical record from 25 August 2006 shows the Applicant reported daily use of marijuana between the ages of 14 and 17 and daily use of cocaine between the ages of 15 and 17. Similarly, he denied receiving any previous

counseling of any type on his DD Form 2807-1 , which is contradictory to his mental health record. More importantly, on 25 August 2006, the clinical psychologist found the Applicant was regarded as fit and suitable for full duty, less than two weeks before his assault on a shipmate. The Applicant submitted a post-service letter from a Department of Veterans Affairs clinical psychologist dated 16 January 2013 that state d the Applicant ha d a current diagnosis of PTSD, secondary to civilian trauma, and noncombat military related trauma. The psychologist further state d that the Applicant’s discharge related conduct could have been the result of his chronic PTSD. After an exhaustive review and giving thorough consideration to the post-service clinical psychologist letter and the in-service mental health evaluations , the NDRB determined PTSD and TBI did not mitig ate the Applicant’s in-service misconduct. The NDRB also determined the requirements for a medical evaluation before administrative separation as mandated by 10 U.S.C. § 1177 were met. Further, t he NDRB determined the evidence of record and the evidence submitted by the Applicant did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. His lenient General characterization of service suggests his command did take into consideration his PTSD and TBI during the separation process, as the seriousness of the Applicant’s misconduct would have typically resulted in an Under Other Than Honorable Conditions discharge. 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 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 | 2013_Navy | ND1301248

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