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NAVY | DRB | 2014_Navy | ND1400031
Original file (ND1400031.rtf) Auto-classification: Denied

ex-OSSN, USN
Current Discharge and Applicant’s Request
Application Received: 20131008
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        20100601 - 20110315     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20110316     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20130703      Highest Rank/Rate: OS3
Length of Service: Y ear( s ) M onth( s ) 18 D a y ( s )
 Education Level:        AFQT: 63
Evaluation M arks:         Performance: 1.5 ( 4 )      Behavior: 1.5 ( 4 )        OTA: 1.75

Awards and Decorations ( per DD 214):      Pistol

Periods of C ONF :

NJP :

- 20120808 :      Article ( Absence without leave )
         Article ( Failure to obey order or regulation )
         Article ( False official statements )
         Awarded: Suspended: [Extracted from Evaluation Report and Counseling Record period of report 20120716 to 20120808 dated 20121030.]

- 20130422 :      Article ( Absence without leave )
         Article ( Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer )
         Awarded : Susp ended: [Extracted from Evaluation Report and Counseling Record period of report 20120809 to 20130703 dated 20130703.]

S CM :    SPCM:    C C :

R etention Warning Counseling:

         - 20120813:      Per Notice of Administrative Separation, dated 20130625










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 Present, 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 con tends Traumatic Brain Injury ( TBI ) prevented him from completing his job effectively and was the reason for his Uniform Code of Military Justice (UCMJ) violations.
2.       The Applicant contends he did not complete any post-deployments surveys or any medical evaluations after his deployment, and his involuntary separation was not held in abeyance and no follow-up diagnoses could possibly be done as required by law.
3.       The Applicant contends his commanding officer did not determine if TBI was a contributing factor to his discharge processing as was required. He also contends a subsequent Department of Veterans Affairs (VA) examination determined TBI affected his ability to perform.
4.       The Applicant contends he was not given an opportunity to overcome his deficiencies after receiving a retention warning following his first nonjudicial punishment (NJP), because the Navy never offered him treatment for his TBI.

Decision

Date: 20 1 4 0130             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 reviewed the Applicant’s record to see if he deployed in support of a contingency operation and was, as a consequence of that deployment, diagnosed with either Post-Traumatic Stress Disorder (PTSD) or TBI. A review of his record revealed that he did deploy to the Persian Gulf, but his TBI was not as a result of that deployment. Although his case did not warrant an expedited review in accordance with U.S. Code, Title X, Section 1553(d)(1), the NDRB did include a psychiatrist on the documentary review board to ensure his discharge met the pertinent standards of equity and propriety.

 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 governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The 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 one Page 13 retention warning and for of the UCMJ: Article 86 (Absence without leave, 2 specifications), Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer, 1 specification), Article 92 (Failure to obey order or regulation, 1 specification), and Article 107 (False official statements, 1 specification). Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant exercised right to consult with a qualified counsel but waived his rights to submit a written statement and request a General Court-Martial Convening Authority review.
: (Decisional) ( ) . The Applicant contends TBI prevented him from completing his job effectively and was the reason for his UCMJ violations. On 25 August 2011, the Applicant sustained blunt trauma to the head from a bicycle accident , was treated at Naval Medical Center (NMC) San Diego , and diagnosed “as having a concussion and left temporal laceration, with a normal CT scan of the head.” According to notes in the Applicant’s VA Compensation & Pension (C&P) Exam from September 2013, after his bicycle accident, “he was periodically evaluated and treated on active duty for his reported symptoms, diagnosed as a chronic ‘post-concussion syndrome’ (February 10, April 15, and May 22, 2013).” During the Applicant’s enlistment, he was found guilty at NJP of violating UCMJ Articles 86, 92, and 107, was given a Page 13 retention warning, and was found guilty at a second NJP of violating UCMJ Articles 86 and 91, thus meeting the requirements for administrative separation for Misconduct (Serious Offense) and Misconduct (Pattern of Misconduct). Nowhere in the in-service or post-service medical records are there any indications that the Applicant was not


responsible for his actions or should not be held accountable for his misconduct. The Applicant contends the VA determined his misconduct was due to TBI as noted by the following C&P Exam entry: “The veteran’s problems with migraine headaches, c oncentration, and memory adversely affected his workplace performance on active duty. After receiving two disciplinary actions due to his TBI and depression symptoms (missed section call; at wrong duty station on ship) and after being evaluated on several occasions at NMC San Diego for his mental disorders and TBI, he was cleared for administrative discharge due to a pattern of misconduct.” The NDRB determined this VA entry does not exonerate the Applicant from misconduct but is rather documentation of what the Applicant described during the C&P Exam. The VA’s subsequent 10% disability rating for TBI that resulted from the highest level of severity of “1” is a further indication that his mild TBI had minimal, if any, effect on his ability to conform to the orders and directives that regulate good order and discipline in the Naval Service. Relief denied.

Issues 2-3: (Decisional) ( ) . The Applicant contends he did not complete any post-deployments surveys or any medical evaluations after his deployment, and his involuntary separation was not held in abeyance and no follow-up diagnoses could possibly be done as required by law. He also contends his commanding officer did not determine if TBI was a contributing factor to his discharge processing as was required , and a subsequent VA examination determined TBI affected his ability to perform. Per OPNAVINST 6100.3, paragraph 3.b., the Applicant was exempt from post-deployment surveys and medical evaluations since his deployment to the Persian Gulf was while he was assigned to a ship conducting a routine deployment; the deployment was not ashore for more than 30 days; and the commander exercising operational control did not determine that a health threat existed. Although the Applicant’s commanding officer indicated “N/A” as to whether PTSD/TBI was determined to be a contributing factor, the NDRB determined the requirements of Naval Military Personnel Manual Article 1910-702 were met in that competent medical authority conducted a full review of the Applicant’s in-service, non-combat TBI and determined he was fit for separation. As discussed in Issue 1, the VA did not determine or state that his TBI caused, mitigated, or exonerated his misconduct. After a complete review of the records, the NDRB determined TBI did not mitigate his misconduct, and his discharge was warranted, proper, and equitable. Relief denied.

Issue 4: (Decisional) ( ) . The Applicant contends he was not given an opportunity to overcome his deficiencies after receiving a retention warning following his first NJP, because the Navy never offered him treatment for his TBI. The Applicant received his first NJP on 8 August 2012, followed by a retention warning on 13 August 2012. The Applicant’s second NJP occurred on 22 April 2013 , eight months after his retention warning. As stated in Issue 1, the Applicant was seen multiple times by competent medical authority during his enlistment for TBI and mental-disorder complaints. The NDRB determined he had sufficient time to overcome his deficiencies and his lack of formal TBI treatment did not mitigate his disobedience of the orders and directives that regulate good order and discipline in the Naval Service, demonstrating he was unsuitable for further service. 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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