Upgrade.Vet

NAVY | DRB | 2014_Navy | ND1400116

Original file (ND1400116.rtf) Auto-classification: Denied

ex-CTI2, USN

Current Discharge and Applicant’s Request

Application Received: 20131022

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)        20020522 - 20020605     Active:          20020606 - 20060215

Period of Service Under Review:
Date of Current Enlistment: 20060216     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20080115      Highest Rank/Rate: CTI1
Length of Service: Y ear( s ) M onth( s ) 00 D a y ( s )
Education Level:        AFQT: 95
Evaluation M arks:         Performance: 4.6 ( 5 )      Behavior: 3.6 ( 5 )        OTA: 3.86

Awards and Decorations ( per DD 214):      JSAM JMU A GCM NDSM GWOTEM GWOTSM SSDR

Periods of UA /C ONF :

NJP :

- 20071023 :      Article (Drunken or reckless operation of vehicle, aircraft, or vessel)
         Awarded: Suspended:

S CM :    SPCM:    CC:      Retention Warning Counseling :

CIVIL ARREST:

- 20071020 :       Charges: Driving while under the influence of alcohol. BAC was .209. The case is still pending civilian court.

Administrative Corrections to the Applicant’s DD 214

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

         Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “ JOINT SERVICE ACHIEVEMENT MEDAL ; JOINT MERITORIOUS UNIT AWARD; GOOD CONDUCT MEDAL; NATIONAL DEFENSE SERVICE MEDAL; GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL; GLOBAL WAR ON TERRORISM SERVICE MEDAL; SEA SERVICE DEPLOYMENT RIBBON, IRAQ CAMPAIGN MEDAL; CERTIFICATE OF COMMENDATION; RIFLE MARKMANSHIP RIBBON; FLAG LETTER OF COMMENDATION ”
         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 020606 UNTIL 060215 ”
         “ MISCONDUCT (SERIOUS OFFENSE) ”

The NDRB will recommend to the Commander, Navy Personnel Command, PERS-312A, 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/Me dical 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 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 111 .

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

Applicant’s Issues

1.       The Applicant contends his discharge was premature due to the Navy classifying him as a twice-failed alcohol rehab failure, and the discharge would not be warranted if presented today.
2.       The Applicant contends his alcohol abuse was a coping mechanism for P ost-Traumatic Stress Disorder (P TSD ) after serving two tours in Iraq. Additionally, the Department of Veterans Affairs (VA) has determined his PTSD is service-connected and so warrants an upgrade.

Decision

Date: 20 1 4 0605             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’s service record do cuments completion of two deployment s to Iraq 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 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 in his current enlistment included for o f the Uniform Code of Mil itary Justice (UCMJ): Article 111 ( Drunken or reckless operation of vehicle, aircraft, or vessel , 1 specification ) and c ivil a rrest for driving while under the influence of alcohol. Based on the offense committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing for Misconduct (Serious Offense) and Alcohol Rehabilitation Failure 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 . The Separation Authority reviewed the Applicant’s separation proceedings and ordered him to be discharged with a General (Under Honorable Conditions) characterization of service for Misconduct (Serious Offense).

: (Decisional) ( ) . The Applicant contends his discharge was premature due to the Navy classifying him as a twice-failed alcohol rehab failure, and the discharge would not be warranted if presented today. Though the Applicant was notified of separation proceedings for both Misconduct (Serious Offense) and Alcohol Rehabilitation Failure, the Separation Authority ultimately determined that Misconduct (Serious Offense) was the primary reason for separation. Per Naval Military Personnel Manual Article 1910-142, the Applicant met the requirements for administrative separation for Misconduct (Serious Offense) after being found guilty at NJP on 23 October 2007 of violating UCMJ Article 111 ( Drunken or reckless operation of vehicle, aircraft, or vessel). The Applicant received an Honorable characterization of service for his first enlistment from June 2002 to February 2006. Each period of enlistment is an independent obligation and characterization is determined for that specific period of time. With the commission of a serious offense in his second enlistment, and after reviewing the three character references submitted by the Applicant attesting to his in-service performance, the NDRB determined the quality of his service during his second enlistment was honest and faithful but significant negative aspects of his conduct or performance of duty outweighed the positive aspects of his service record, and the discharge was proper and equitable. Relief denied .

: (Decisional) ( ) . The Applicant contends his alcohol abuse was a coping mechanism for PTSD after serving two tours in Iraq. Additionally, the VA has determined his PTSD is service-connected and so warrants an upgrade. The Applicant provided medical records, both active duty and post-service, from the VA. The records received from the VA failed to document any request for evaluation, any diagnosis, or any findings of PTSD or other mental health concerns. Moreover, the Applicant did not provide any evidence of a diagnosis of PTSD from any other private mental health treatment provider s to document his claim. The NDRB found no evidence in the record of any indications of, or diagnosis for, PTSD. Additionally, there is no evidence in either the Applicant’s service record or the documentation he provided that demonstrated he was either not responsible for his conduct or should not be held accountable for his actions. Having attended alcohol counseling after his first alcohol-related incident before he ever deployed, the Applicant was aware of treatment available for alcohol abuse and also for mental health concerns. After a complete review of the records, the NDRB determined PTSD did not mitigate his misconduct. Additionally, decisions reached by the VA to determine if former servicemembers rate certain VA benefits do not affect previous discharge decisions made by the Navy. The criteria used by the VA in determining whether a former servicemember is eligible for benefits are different than that used by the Navy when determining a member’s discharge characterization. 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 | 2014_Navy | ND1400116

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