ex-MMFA, USN

Current Discharge and Applicant’s Request

Applicant’s Request:     Characterization change to:     
         Narrative Reason change to:     

Summary of Service

Prior Service:
Inactive:        USNR (DEP)       20050920 - 20060308     Active: 

Period of Service Under Review:
Date of Current Enlistment: 20060309    Age at Enlistment:
Period of Enlistment: Years Extension
Date of Discharge: 20100730     Highest Rank/Rate: MM3
Length of Service: Year(s) Month(s) 22 Day(s)
Education Level:        AFQT: 70
Evaluation Marks:        Performance: 3.2 (5)     Behavior: 2.6 (5)       OTA: 3.05

Awards and Decorations (per DD 214):     Pistol

Periods of UA/CONF:

NJP:

- 20091115:      Article (Drunken or reckless operation of vehicle, aircraft, or vessel)
         Awarded: Suspended:

- 20091215:      Article (Drunken or reckless operation of vehicle, aircraft, or vessel)
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling:

- 20091215:      For driving under the influence.

- 20100707:      For your medical conditions. You were diagnosed with adjustment disorder. Your present medical condition has not been considered a physical disability, however, it may be a disqualifying factor in determining your suitability for further Naval service.

Administrative Corrections to the Applicant’s DD 214

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

         “MMFA”
         “E2”

The NDRB will recommend to the Commander, 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:                  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 17 August 2011, 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 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 improper because he never received a proper diagnosis of adjustment disorder. The Applicant further implies that his diagnosis was improper as the correct diagnosis should have been post-traumatic stress disorder (PTSD).
2.       The Applicant contends his discharge was improper because he was not provided treatment in a timely manner for his health condition, not a disability.
3.       The Applicant contends his discharge was improper because he did not have any additional misconduct after receiving his recommended treatments.
4.       The Applicant contends his discharge is inequitable because it was based on an isolated incident.

Decision

Date: 20141113            Location: Washington D.C.        Representation:

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 PTSD or TBI. 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, 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 NAVPERS 1070/613 (Page 13) warnings, for of the Uniform Code of Military Justice (UCMJ): Article 111 (Drunken or reckless operation of vehicle, aircraft, or vessel; two specifications). Based on the offense(s) committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing on 6 July 2010 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 by refusing to either expressly exercise or waive his rights and acknowledge the notification by signing it.

: (Decisional) () . The Applicant contends his discharge was improper because he never received a proper diagnosis of adjustment disorder. The Applicant further implies that his diagnosis was improper as the correct diagnosis should have been post-traumatic stress disorder (PTSD). 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 record of evidence indicates the Applicant was properly diagnosed by competent medical authorities. Furthermore, the NDRB found the Applicant’s record clearly indicated he never deployed and was never subject to any in-service conditions that would warrant a medical diagnosis of PTSD. The Applicant’s service record fails to support his claim and he 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. Multiple driving under the influence incidents, which resulted in arrest, were conscious decisions to violate the tenants of honorable and faithful service. Alcohol consumption is never a rationale or an acceptable excuse for inappropriate conduct, misconduct, or poor judgment. Relief denied.

: (Decisional) () . The Applicant contends his discharge was improper because he was not provided treatment in a timely manner for his health condition, not a disability. The NDRB found evidence in the record that the Applicant received treatment for his mental health conditions as well as his substance abuse issues. Insofar as the Applicant’s mental health conditions are concerned, the NDRB found the Applicant’s treatment was both adequate and timely. The NDRB also found that the Applicant’s in-service medical documents reveal that he fraudulently entered into the military service by not revealing his prior service history of suicide attempts, suicide ideations, behavioral issues such as cutting himself when under stress, auditory hallucinations, and longstanding issues with the consumption of alcohol during his enlistment process. Regulations require members who have an ongoing history of alcohol abuse to be medically screened for an alcohol problem. If diagnosed as dependent on alcohol by competent medical authority, which does not include the commanding officer, appropriate treatment must be offered prior to separation. The purpose of this treatment is not to rehabilitate a service member for further service but rather to provide treatment before separation. 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. Therefore, the Board concluded the command acted appropriately, equitably, and properly in processing the Applicant for separation for his misconduct while continuing his mental health treatment. Relief denied.

: (Decisional) () . The Applicant contends his discharge was improper because he did not have any additional misconduct after receiving his recommended treatments. The NDRB notes that the Applicant was notified of separation not just for his Adjustment Disorder, but also for his pattern of misconduct, commission of a serious offense, and civil conviction. Department of Defense regulations provide that disciplinary separations supersede disability separations. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. The record of evidence, to include the statement and documentation provided to this board by the Applicant, clearly indicates the Applicant was separated primarily due to his commission of a serious offense. A servicemember may be processed for separation for the commission of a serious military or civilian offense when the offense or a closely related offense is a violation of the UCMJ and warrants a punitive discharge in accordance with the Manual for Courts-Martial. There is no requirement for adjudication by judicial or non-judicial proceedings, but the offense must be substantiated by a preponderance of the evidence. In the Applicant’s case he was found guilty at nonjudicial punishment for violations of the UCMJ Article 111 (Drunken or reckless operation of vehicle, aircraft, or vessel) on two distinct occasions. Violation of UCMJ Article 111 is considered a serious offense would warrant, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. The Applicant’s medical record also further indicates that the applicant’s second driving under the influence charge stemmed from a 16 November 2009 arrest which caused him to be late to work two days later on 18 November 2009 as well as an alcohol related domestic violence incident and allegations of marijuana use. The NDRB determined the Applicant’s conduct, which forms the primary basis for determining the character of his service, reflected a significant departure from the conduct expected of a servicemember and that an upgrade was not warranted. Relief denied.

4: (Decisional) () . The Applicant contends his discharge is inequitable because it was based on an isolated incident. The Applicant was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation. The characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation. Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition. Based on the Applicant’s record of service, the NDRB determined the Applicant’s service 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 awarded characterization of service was generous. 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

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