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NAVY | DRB | 2014_Navy | ND1400721
Original file (ND1400721.rtf) Auto-classification: Denied

ex-MNSR, USN
Current Discharge and Applicant’s Request
Application Received: 20140311
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request:      Characterization change to:      
         Narrative Reason change to:       NON-RETENTION ON ACTIVE DUTY

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        20051011 - 20060122     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20060123     Age at Enlistment:
Period of E nlistment : Year 12 Weeks Extension
Date of Discharge: 20070720      Highest Rank/Rate: MNSA
Length of Service: Y ear( s ) M onth( s ) 28 D a y ( s )
 Education Level:        AFQT: 66
Evaluation M arks:         Performance: 1.0 ( 1 )      Behavior: 1.0 ( 1 )        OTA: 1.5

Awards and Decorations ( per DD 214):      Rifle Pistol

Periods of UA /C ONF :

NJP :

- 20070326 :      Article (Assault)
         Awarded: Suspended:

- 20070509 :      Article (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer)
         Awarded: Suspended:

- 20070614 :      Article (Disrespect toward a superior commissioned officer)
         Article (General A rticle, indecent language)
         Awarded: Suspended:

S CM :    SPCM:    C C :      Retention Warning Counseling :

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 :        


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

Applicant’s Issues

 1.        The Applicant contends the Navy should have been aware that he suffered from Asperger’s Syndrome (AS) at the time of enlistment.
2.       The Applicant contends he was repeatedly victimized in the Navy.
3.       The Applicant contends his behavior following the assault was consistent with Post-Traumatic Stress Disorder (PTSD) and AS symptoms.
 4.       The Applicant contends he successfully completed his contract with the Navy .
5.       The Applicant contends he has continued to seek treatment since his release from the Navy.
Decision

Date : 20 1 4 0807    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, d iagnosed with PTSD or Traumatic Brain Injury . A review of his record revealed that he did not deploy in support of a contingency operation, and so his case did not warrant an expedited review in accordance with U.S. Code, Title X, Section 1553(d)(1). The NDRB, however, did include a Navy psychiatrist on the board that reviewed his case.

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 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 for o f the Uniform Code of Military Justice (UCMJ): Article 89 ( Disrespect toward a superior commissioned officer ), Article 91 ( Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer), Article 128 ( Assault), and Article 134 ( General A rticle, indecent language ). 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 a General Court-Martial Convening Authority review .

Issue 1: (Decisional) (Propriety) RELIEF NOT WARRANTED. The Applicant contends the Navy should have been aware that he suffered from AS at the time of enlistment. Federal law requires all persons applying for enlistment in the military to fully disclose all records and pre-service medical treatment and diagnoses. It is not the duty of recruiters or Military Entrance Processing Station (MEPS) physicians to conduct in-depth medical exams to figure out what conditions personnel may have, which is why potential enlistees are required to complete numerous forms concerning pre-service medical issues. Therefore, the Applicant had an obligation to truthfully and fully answer all questions regarding his medical history. From the Applicant’s statement on his DD Form 293 to the NDRB, it is clear that he fraudulently enlisted by neglecting to inform recruiters or MEPS physicians that he had been diagnosed pre-service with AS. Further, throughout the Applicant’s brief Navy service, he continued to conceal his AS diagnosis. Based on the Applicant’s failure to truthfully and fully disclose information regarding his pre-service medical history, the NDRB determined his enlistment was fraudulent, and his command likely would have also notified him of administrative separation processing for Fraudulent Entry in addition to a Pattern of Misconduct had they discovered that he intentionally concealed his pre-service diagnosis of AS. Relief denied.




Issue 2: (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant contends he was repeatedly victimized in the Navy. 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. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was repeatedly victimized in the Navy. The Applicant was seen by mental health professionals in an inpatient status multiple times during his enlistment due to suicidal ideations and violent outbursts. At no time during these hospitalizations with mental health professionals did the A pplicant reveal anything related to his post-service claims of Military Sexual Trauma (MST) or his pre -service diagnosis of AS. In addition to there being no mention of MST in his medical records other than his post-service claim to the Department of Veterans Affairs (VA) and to a Dr. O_ in April 2010 , there is nothing in his service record to show that he ever filed a report or made any claims of in-service MST. Statements alone, without sufficient documentary evidence, are not enough for the NDRB to form a basis of relief. The NDRB determined his claims of being victimized in the Navy did not mitigate his misconduct, and his discharge was warranted, proper, and equitable. Relief denied.

 Issue 3: (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant contends his behavior following the assault was consistent with PTSD and AS symptoms. In paragraph IV.b. of the Applicant’s statement that accompanied his DD Form 293 application to the NDRB, the Applicant states, “However, I believe my evaluation was unfairly based on my behavior following the sexual assault (June 2007) and not an overall picture of my performance….” A review of the Applicant’s records shows that his first NJP, which was for assault, occurred on 26 March 2007. His second NJP, which was for insubordinate conduct, occurred on 5 May 2007. At this point, the Applicant met the requirements for administrative separation for Misconduct (Serious Offense) and Misconduct (Pattern of Misconduct). His command, however, determined he was still fit to serve and continued to offer mental health services to allow him to succeed in the Navy. His third and final NJP, which was for disrespect to a superior commissioned officer and for indecent language, occurred on 14 June 2007.

 The NDRB requested all records of medical treatment, 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 a related MST while in service . In the DD Form 293 application to the NDRB, the Applicant states that he did not report the MST “because subsequent to the assault I received threats from my shipmates that they would ‘cut my balls off if I told.’” As stated in Issue 2, there is no mention of any MST during his multiple in-service psychiatric treatments and counselings , and the majority of his misconduct occurred before the alleged MST in June 2007 . The Applicant’s diagnosis for PTSD due to MST was found credible by his VA reviewer solely on the premise that due to his AS he could have likely been taken advantage of by predatory individuals in the Navy and because the Applicant did not reveal any other potential incident that could have caused his PTSD. With regard to this decision, the NDRB noted that the Applicant failed to fully disclose his medical history and diagnoses upon enlistment and during his service as it was his duty to do. The NDRB found the oral testimony and decision by the VA for compensation to be insufficient to justify a change in discharge characterization and na rrative reason for separation. There is nothing in the records to indicate that the Applicant was not responsible for his actions or should not be held accountable for his misconduct.

 When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline. However, the NDRB does not consider the circumstances surrounding the Applicant’s stated condition s and diagnos e s to be of sufficient nature to excuse the Applicant’s misconduct. After a thorough review of the medical and service records, the NDRB determined the offenses resulting in the Applicant’s three NJPs for multiple serious violations of the UCMJ were all conscious decisions to violate the ten ets of honorable and faithful service. In fact, the command was very lenient in only discharging the Applicant with a General characterization of service, as misconduct of his frequency and severity warranted an Under Other Than Honorable Conditions discharge. The NDRB, however, is not authorized to change a characterization of service to a more unfavorable level. Though the Applicant may feel that PTSD and AS were the underlying cause s of his misconduct, the record reflects willful misconduct that demonstrated he was unfit for further service , and the NDRB determined PTSD and AS did not mitigate or excuse his misconduct. Relief denied.
Issue 4: (Decisional) ( ) . The Applicant contends he successfully completed his contract with the Navy . A review of the Applicant’s service records reveals that on 6 January 2006, the Applicant signed a National Call to Service Program Enlistment Guarantee that said, “The Navy will order me to recruit training, MN Class “A” School, and an initial active duty period of 15 months after training. ” Taking into consideration the length of recruit training plus MN “A” School plus 15 months of active duty after training, the Applicant’s active duty obligation was approximately 20 months. The Applicant served 17 months and 28 days of that obligation . The Applicant did not successfully complete his contract with the Navy and was properly and equitably discharged for a Pattern of Misconduct before he reached the end of his active duty obligation. Relief denied.



Issue 5: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends he has continued to seek treatment since his release from the Navy . He further contends he has begun working with a VA psychiatrist, attends daily Alcoholics Anonymous meetings, receives Social Security Disability, has been repeatedly diagnosed with PTSD secondary to MST, and has a sincere desire to heal and become a contributing member of society. The NDRB considers 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. The Applicant provided a personal statement, an article on military personnel with AS, a VA disability determination, and post-service psychiatric documentation. T he NDRB determined the documentation submitted by the Applicant does not demonstrate if in-service misconduct was an aberration or is mitigated by his medical conditions . The characterization of service received was lenient considering the length of service and UCMJ violations. 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 . T he 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.

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until 19 May 2008, 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 .


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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