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NAVY | DRB | 2014_Navy | ND1401341 (8)

Original file (ND1401341 (8).rtf) Auto-classification: Denied

ex-ACAN, USN

Current Discharge and Applicant’s Request

Application Received: 20140715

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to:       REFLECT MEDICAL REASONS

Summary of Service

Prior Service:
Inactive:         USNR (DEP)        20100126 - 20100531     Active:

Period of Service Under Review:
Date of Current Enlistment: 20100601     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20130719      Highest Rank/Rate : AC3
Length of Service: Y ear( s ) M onth( s ) 19 D a y ( s )
Education Level:        AFQT: 63
Evaluation M arks:         Performance: 2.5 ( 4 )      Behavior: 2.0 ( 4 )        OTA: 2.63

Awards and Decorations (per DD 214):      Pistol JMUA

Periods of UA/CONF:

NJP :

- 20130529 :      Article (Failure to obey order or regulation)
         Article (Larceny and wrongful appropriation)
         Awarded: Suspended:

SCM:

SPCM:

CC:

Retention Warning Counseling :

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: “ NATIONAL DEFENSE SERVICE MEDAL, GLOBAL WAR ON TERRORISM SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON, NAVY PISTOL SHOR MARKSMAN RIBBON, NAVY "E", JOINT MERITORIOUS UNIT AWARD , GOOD CONDUCT MEDAL, OVERSEAS SERVICE RIBBON , HUMANITARIAN SERVICE MEDAL ”

The NDRB will recommend to the C ommander, 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 36, effective 18 August 2011 until Present, 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 IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications.

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 s of the UCMJ, Article s 92 and 121.

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

Applicant’s Issues

1.        The Applicant contends that he was denied his due process rights.
2.       The Applicant contends that his chain of command abused its authority.
3 .       The Applicant contends that the waiving of his rights was invalid due to his mental illness.
4 .       The Applicant contends PTSD from a hostile work environment mitigates his misconduct.
5 .       The Applicant contends his Schizophrenia mitigates his misconduct.

Decision

Date : 20141106             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall .

Discussion

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. 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 (NDRB) 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 PTSD or TBI. The Applicant stated that his PTSD is related to a hostile work environment ; implying that his PTSD was not the result of a contingency operation . Therefore, thi s case did not warrant an expedited review in accordance with U.S. Cod e, Title X, Section 1553(d)(1). The NDRB included a member who is a physician, clinical psychologist, or psychiatrist. The Applicant’s record of service include d for o f the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation) and Article 121 (Larceny and wrongful appropriation) . Based on the offenses committed by the Applicant, his command administratively processed him for separation. When notified of administrative separation processing using the procedure, the Applicant exercis ed rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review .

: (Decisional) ( ) . The Applicant contends that he was denied his due process rights. 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. The NDRB determined that the evidence provided by the Applicant does not refute the presumption of regularity. The record shows that the Applicant exercised his rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review. In addition, the record shows the Applicant exercised his right to appeal his NJP punishment and the appeal was subsequently denied. Although the Applicant stated he was only given a half of a day to write his appeal and that he was denied the ability to consult with civilian counsel, his statements alone do not overcome the government’s presumption of regularity in this case. Relief denied.

: (Decisional) ( ) . The Applicant contends that his chain of command abused its authority. The NDRB is not an investigative body, and allegations of misconduct should be made to the Naval Inspector General’s Office. However, the NDRB determined that the preponderance of the evidence supported that the Applicant had committed a serious offense and the Applicant was afforded all of his due process rights. The NDRB discerned no impropriety or inequity and the Applicant’s separation for his misconduct was appropriate. Relief denied.

: (Decisional) ( ) . The Applicant contends that the waiving of his rights was invalid due to his mental illness. The Applicant further contends that his command had concerns about his behavior and knew or should have known that the Applicant was incapable of waiving his rights making the NJP illegitimate . Contrary to the Applicant’s contention, the record shows that the Applicant actually exercised all of his rights. The record also shows the Applicant submitted a cogent letter appealing his NJP which runs counter to the Applicant’s claims. Additionally, p er the Manual for Courts-Martial United States, the Applicant was attached to a vessel and therefore did not have a right to refuse NJP or request a trial by court-martial. The NDRB discerned no impropriety or inequity and the Applicant’s separation for his misconduct was appropriate. Relief denied.

4 : (Decisional) ( ) . The Applicant contends PTSD from a hostile work environment mitigates his misconduct. 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. The NDRB did not find any reference to a medical diagnosis of PTSD in the Applicant’s service record to support his claim, and the Applicant did not provide any documentary evidence of a medical diagnosis by competent medical authorities to support his claim. Though the Applicant may feel that PTSD was the underlying cause of his misconduct, the record reflects willful misconduct that demonstrated he was unfit for further service. The evidence of record 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 that PTSD did not mitigate the Applicant’s misconduct. Relief denied.

5 : (Decisional) ( ) . The Applicant contends his Schizophrenia mitigates 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 or diagnosis to be of sufficient nature to excuse the Applicant’s misconduct. While in service, the Applicant submitted an extremely cogent appeal letter which runs counter to the Applicant’s contention that his Schizophrenia mitigates his misconduct. Additionally, t he medical record dated 12 December 2013, approximately five months after the Applicant’s separation state d , “There is no evidence of a thought disorder, and no evidence of cognitive difficulty.” The NDRB determined that the record of evidence does not support that the Applicant was not responsible for his in-service misconduct. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall remain UNDER HONORABLE CONDITIONS (GENERAL) and the narrative reason for separation shall remain MISCONDUCT (SERIOUS OFFENSE). The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his 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 | ND1401341 (8)

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