Upgrade.Vet

NAVY | DRB | 2014_Navy | ND1400734

Original file (ND1400734.rtf) Auto-classification: Denied

ex-AR, USN

Current Discharge and Applicant’s Request

Application Received: 20140307

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)        20000726 - 2000080 2     Active:

Period of Service Under Review:
Date of Current Enlistment: 2000 0 80 3     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20031007      Highest Rank/Rate: AN
Length of Service: Y ear( s ) M onth( s ) 04 D a y ( s )
Education Level:        AFQT: 35
Evaluation M arks:         Performance: NFIR         Behavior: NFIR OTA: NFIR

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

Periods of Time Lost per DD Form 214: 20010820 - 20010821, 1 day

NJP :
- 20010425 :      Article 121 ( L arceny and wrongful appropriation)
         Article 134 ( General A rticle - Threat, communicating )
         Awarded: Suspended:

- 20030326 :      Article (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer)
         Awarded: Suspended: [Vacated, date NFIR]

- 20030819 :      Article 86 (Absence without leave)
         Article 92 (Failure to obey order or regulation)
         Awarded: Suspended:

S CM :    SPCM:    C C :

Retention Warning Counseling :
- 20010426 :       For your NJP held 20010425 for violation of the UCMJ, Article 121 (2 specifications) - Aiding and abetting a larceny, larceny of a credit card, and Article 134 - Communicating a threat

Administrative Corrections to the Applicant’s DD 214

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

         “ AR ”
         “ E-1 ”
         “ 00 AUG 03 ”
         “ 03 02 04 ”

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/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), re-issued October 2002, effective 22 August 2002 until 25 April 2005, 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 seeks medical benefits.
2.       The Applicant contends he served h onorably for 38 months.
3.       The Applicant contends he was denied medical treatment while in service.
4 .       The Applicant contends his misconduct was a series of misunderstandings .
5.       The Applicant contends he has P ost-Traumatic Stress Disorder (P TSD ) from his punishment.
6.       The Applicant contends his post-service psychiatric care warrants an upgrade.

Decision

Date : 20140807             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 documents that he was attached to the USS THEODORE ROOSEVELT (CVN 71), and his DD Form 214 annotates that he was awarded two Sea Service Deployment Ribbons. Therefore, the NDRB presumed the Applicant deployed in support of a contingency operation.

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 and for o f the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave) , Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer) , Article 92 (Failure to obey order or regulation) , Article 121 ( Larceny and wrongful appropriation), and Article 134 (General A rticle - Threat, communicating). Based on the offense s 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 an administrative board .

: (Nondecisional) The Applicant seeks medical 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.

: (Decisional) ( ) . The Applicant contends he served h onorably for 38 months. The record shows the Applicant had persistent misconduct throughout his career. Based on the Applicant’s record of service, which included a retention warning and being found guilty at three NJPs, the NDRB determined he engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service, and the awarded characterization of service was warranted. Relief denied.

: (Decisional) ( ) . The Applicant contends he was denied medical treatment while in service. The NDRB 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. Other than the Applicant’s statement that he was denied medical treatment while in service , he provided no evidence and his statement alone is not enough to refute the presumption of regularity. The NDRB discerned no impropriety in the Applicant’s discharge. Relief denied.

4 : (Decisional) ( ) . The Applicant contends his misconduct was a series of misunderstandings. The record of evidence clearly shows the Applicant was found guilty at three NJPs of violating multiple UCMJ articles. When notified of administrative separation processing, he waived his right to an administrative separation board. If the Applicant felt he was mistakenly charged with a crime, it was his obligation to contest those charges at the time they w ere made. During an administrative separation board, he would have had the opportunity to mount a defense against the charges. The Applicant submitted no evidence to support his contention , therefore, the NDRB must rely upon the presumption of regularity in the conduct of Government affairs. Relief denied.

5 : (Decisional) ( ) . The Applicant contends he has PTSD from his punishment. The Applicant further contends he has tried hard to block every memory from Afghanistan to Iraq. The Applicant did not provide an actual diagnosis of PTSD. However, th e Applicant submitted a letter from a clinical therapist dated 11 September 2013 stating that t he Applicant had been receiving therapy for mental health issues such as PTSD, anger management, and substance abuse issues. Though the Applicant may feel that PTSD was the underlying cause of his misconduct, the record reflects the Applicant displayed willful and persistent misconduct with unauthorized absence, i nsubordinate conduct , f ailure to obey order s and regulations, l arceny , and communicating t hreat s. T he evidence of record and documentation 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. After an exhaustive review, the NDRB determined PTSD did not mitigate the Applicant’s misconduct. Relief denied.

6 : (Decisional) ( ) . The Applicant contends his post-service psychiatric care warrants an upgrade. In addition to the Applicant’s documentation of receiving therapy for mental health issues such as PTSD, anger management, and substance abuse issues , the Applicant submitted documentation that he had been treated for Schizoaffective Disorder from June through October 2005. The NDRB found no evidence, nor did the Applicant provide any, to indicate he had any symptoms of having mental health issues while in the Navy from August 2000 until October 2003 . None of his post-service documentation showed that he was either not responsible for his in-service conduct or that he should not be held accountable for his actions. 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 | ND1400734

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