ex-GMSR, 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) 20060606 - 20060913          Active: 

Period of Service Under Review:

Date of Current Enlistment: 20060914    Age at Enlistment:
Period of Enlistment: Years Extension
Date of Discharge: 20091222     Highest Rank/Rate: GMSN
Length of Service: Year(s) Month(s) 09 Day(s)
Education Level:        AFQT: 99
Evaluation Marks:        Performance: 2.5 (6)     Behavior: 1.5 (6)       OTA: 2.17

Awards and Decorations (per DD 214):    

Periods of CONF:

NJP:

- 20091016:      Article
         Awarded: 2 months Suspended:

- 20091205:      Article
         Awarded: Suspended:

SCM: SPCM: CC:

Retention Warning Counseling:

- 20091016:      For unauthorized absence

NDRB Documentary Review Conducted (date):        20120822
NDRB Documentary Review Docket Number:   ND11-01731
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.

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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 Present, 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 contends that his separation from service should have been based on the convenience of the government resulting in a medical discharge or condition interfering with duty instead of misconduct.
2.       The Applicant contends that the infractions were minor and do not consider his military accomplishments.
3.       The Applicant contends that he should not be penalized for incidents that might have arisen due to mental illness.
4.       The Applicant contends the proper standard of review is convenience of the government, and as a result, there is presumption in the petitioner’s favor that he is entitled to an honorable discharge.
5.       The Applicant contends that his post-military service warrants an upgrade and his discharge is a hindrance to employment.

Decision

Date: 20150810            Location: Washington D.C.        Representation:

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 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 completed 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 and for of the Uniform Code of Military Justice (UCMJ): Article and Article . 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.

As a result of the Applicant’s claim that a schizoaffective disorder impacted his discharge, and in accordance with U.S. Code, Title X, Section 1553 (e)(2), the Naval Discharge Review Board included a member who is a clinical psychologist or psychiatrist, or a physician with special training on mental health disorder. The Applicant’s medical record did not document that the Applicant was diagnosed with a schizoaffective disorder while serving in the armed forces; however, the Applicant provided documentation of a diagnosis for a schizoaffective disorder dated 15 February 2011.


Issue 1: (Nondecisional). The Applicant contends that his separation from service should have been based on the convenience of the government resulting in a medical discharge or condition interfering with duty instead of misconduct. The Applicant’s father provided testimony that his son was clearly exhibiting symptoms of a mental health disorder prior to discharge and that the condition was not properly diagnosed. The Applicant’s medical record did not document any mental health issues while in service; however, the Applicant received a diagnosis for a schizoaffective disorder on 15 February, 2011. 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. The Applicant can petition BCNR for a determination of whether the medical condition or underlying diagnosis interfered significantly with the applicant’s ability to carry out the duties of their office, grade, rank or rating. The Applicant (using DD Form 149) may file the petition with BCNR, at 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm.



: (Decisional) () . The Applicant contends that the infractions were minor and do not consider his military accomplishments. In the Applicant’s statement, he submits that his activities including SEAL training and service aboard USS WASP (LHD-1) were admirable. The Applicant’s first misconduct was a violation of Article 86 (Absence without leave) for one day that resulted in NJP on 16 October 2009. Following the NJP, the Applicant was retained in the Navy and given a NAVPERS 1070/613 Retention Warning advising him that any further deficiencies in performance or conduct could lead to further disciplinary actions and processing for administrative separation. Less than two months later, the applicant was charged with two specifications of Article resulting in NJP on 05 December 2009. The incidents occurred while the Applicant was still on restriction from the first NJP, and the misconduct occurred on two separate days and involved different service members. Article 128 (Assault) usually results in an unfavorable characterization of discharge or, 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 command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. Relief Denied.

: (Decisional) () . The Applicant contends that he should not be penalized for incidents that might have arisen due to mental illness. The Applicant was not diagnosed with any mental health issues while in the service; however, he was diagnosed with a schizoaffective disorder post-service on 15 February 2011. Though the Applicant may feel that a mental health diagnosis was the underlying cause of his misconduct, the evidence of record did not show that the diagnosis was a sufficient mitigating factor to fully excuse the Applicant’s conduct or accountability concerning his actions. After a thorough review, the NDRB determined that his current diagnosis of schizoaffective disorder did not fully mitigate the Applicant’s in-service misconduct and the characterization of service was appropriate. Relief denied.

Issue 4: (Decisional) () . The Applicant contends the proper standard of review is convenience of the government, and as a result, there is presumption in the petitioner’s favor that he is entitled to an honorable discharge. Per the Naval Military Personnel Manual (MILPERSMAN) 1900-010, performance scores are normally used as a guide for determining the characterization of service. Per MILPERSMAN 1910-302, the characterization will be based on the member’s total performance of duty and conduct during the current enlistment and due consideration shall be given to the mental condition. In this case, the Applicant’s record documents two NJPs and his performance evaluations document an average trait average of 2.17 which is markedly below standards. Two of the evaluations have a promotion recommendation of “Significant Problems” which are considered adverse material and require command level review and are appropriately signed by the Commanding Officer. 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 fully excuse the Applicant’s misconduct. Relief denied.

5: (Decisional) () . The Applicant contends that his post-military service warrants an upgrade and his discharge is a hindrance to employment. 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 resume containing his employment history, a list of volunteer work, and transcripts from colleges. Each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration. In this case, there were three instances of misconduct over a period of several months. The Board determined that the documentation submitted by the Applicant did not demonstrate that in-service misconduct was an aberration, and the characterization of service received was appropriate considering the length of service and UCMJ violations. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities or employment opportunities. Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge. As such, employment opportunities d o not serve to provide a foundation upon which the NDRB can grant relief. 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 the discharge was proper and equitable at the time of discharge. Therefore, the awarded characterization of service shall remain GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain .

The Applicant is not eligible for further reviews by the NDRB. The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149. Their website can be found at http://www.secnav.navy.mil/mra/bcnr. 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