ex-CECN, 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)       20040818 - 20050802          Active: 

Period of Service Under Review:

Date of Current Enlistment: 20050803          Age at Enlistment:
Period of Enlistment: Years Extension
Date of Discharge: 20091105      Highest Rank/Rate: CECN
Length of Service: Year(s) Month(s) 03 Day(s)
Education Level:         AFQT: 39
Evaluation Marks:        Performance: 2.25 (4)    Behavior: 2.25 (4)       OTA: 2.46      

Awards and Decorations (per DD 214):     Rifle

Periods of CONF:

NJP:

- 20070124:      Article
         Article 108 (Military property; loss, damage)
         Awarded: Suspended:

- 20090211:      Article
         Article 90 (Assaulting, willfully disobeying superior commissioned officer)
Article
         Awarded: Suspended:

SCM:

SPCM:

CIVIL ARREST:

- 20090603:      Charges: Applicant was arrested for Driving under the Influence and failed to appear in court on 27 July 2009. A warrant was issued for his arrest on 29 July 2009 for failure to appear in court to answer to DUI charges.      

-20090831:       Charges: Applicant apprehended by civil authorities on this date for vehicular theft, credit card fraud and identity theft.      

CC: 2

- 20071022:      Offense: Applicant assessed a fine of $135.00 on charges of careless driving for failed to pay said fine in the time required.      
         Sentence: Fine $135.

-20071126:       Offense: Applicant was assessed a fine of $200.00 on charges of reckless driving for failing to pay said fine in the time required.      
Sentence: Fine $200.00

Retention Warning Counseling:

- 20090211:      For violation UCMJ Art 86 (Unauthorized Absence), Art 90 (Willfully Disobeying a Commissioned Officer), Art 134 (Making, uttering checks and dishonorably failing to maintain funds.

- 20070124:      For violation UCMJ Art 107 (False Official Statement), Art 108 (Loss of military property of the United States)

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 23, effective 20 May 2008 until 9 November 2009, 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 IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications.

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

Applicant’s Issues

1. The Applicant contends an upgrade would make him eligible to receive VA Benefits.
2. The Applicant contends his Navy Chief violated his Health Insurance Portability and Accountability Act (HIPA) rights by flushing his medication down the toilet.
3. The Applicant contends he suffered from PTSD and it contributed to his misconduct.

Decision

Date: 20150319            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 or TBI, 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 stated that he was diagnosed with PTSD related to his combat service in Iraq. The Applicant’s service record documents completion of a two deployments. His first deployment was in Ramadi, Al Asad, and Al Taqaddum Iraq from September 2006 to April 2007. His second deployment was for six months in Kuwait 2008-2009 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 governmental 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) warnings, for of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave), Article 90 (Assaulting, willfully disobeying superior commissioned officer), Article 107 (False official statements), Article 108 (Military property; loss, damage), Article 134 (General article); and Civil Arrest and two Civil Convictions. Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing 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 contends an upgrade would make him eligible to receive VA 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 his Navy Chief violated his
Health Insurance Portability and Accountability Act (HIPA) rights by flushing his medication down the toilet. Statements
alone, without sufficient documentary evidence, are not enough for the NDRB to form a basis of relief. Relief denied.

: (Decisional) () . The Applicant contends he suffered from PTSD and it contributed to his misconduct. The Record does indicate the Applicant was initially diagnosed with PTSD, however, this diagnosis was rescinded as further evaluation and psychological testing indicated that he was feigning his mental health symptoms for secondary gain. The Applicant’s medical report states, “Rescinded PTSD diagnosis is deemed to not be a contributing factor per MILPERSMAN 1910-702.” The record also reflects that his commanding officer stated the Applicant “received a diagnoses such as PTSD and Major Depressive Disorder: and been treated with psychotropic medication and psychiatric hospitalizations due to self-reported psychological symptoms and limited contact with mental health providers; it has become evident per psychological evaluation”…that the Applicant “has been malingering/feigning his psychological symptoms for secondary gain for medical discharge from the U.S. Navy with full benefits and to escape…a history of legal charges dating back to 2007.” Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy. A preponderance of the evidence reviewed supports the conclusion that the Applicant committed offenses alleged, that separation from the Navy was appropriate, and that PTSD was not a mitigating factor. Although 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 PTSD was a sufficient mitigating factor to excuse the Applicant’s conduct or accountability concerning his actions. After an exhaustive review, the NDRB determined that PTSD did not mitigate the Applicant’s 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 OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain PATTERN OF MISCONDUCT. 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: Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code. 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