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NAVY | DRB | 2015_Navy | ND1500804
Original file (ND1500804.rtf) Auto-classification: Denied

ex-SHHR, USN

Current Discharge and Applicant’s Request
Application Received: 20150227
Characterization of Service Received: (per DD 214) UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge: (per DD 214) IN LIEU OF TRIAL BY COURT MARTIAL
Reenlistment Code: RE-4
Authority for Discharge: (per DD 214) MILPERSMAN 1910-106 [IN LIEU OF TRIAL BY COURT MARTIAL]

Applicant’s Request:     Characterization change to:      GENERAL (UNDER HONORABLE CONDITIONS)
         Narrative Reason change to:      NONE REQUESTED
        
Summary of Service

Prior Service:
Inactive:        USNR (DEP)       20041112 - 20041213 COG         Active:  NONE

Period of Service Under Review:

Date of Current Enlistment: 20041214    Age at Enlistment: 18
Period of Enlistment: 4 Years 12 MONTHS Extension
Date of Discharge: 20070924     Highest Rank/Rate: SHSA
Length of Service: 02 Year(s) 09 Month(s) 11 Day(s)
Education Level: 12     AFQT: NFIR
Evaluation Marks:        Performance: 3.0 (2)     Behavior: 2.0 (2)       OTA: 2.67

Awards and Decorations (per DD 214):     GWOTSM NDSM NAVY "E"

Period of UA: 20070223-20070723, 150 days
Period of CONF: 20070724-20070801, 31 days

NJP: 2

- 20061026:      Article 92 (Failure to obey order or regulation)
         Article 134 (General article; Disorderly Conduct, Drunkenness)
         Awarded: ORAL REPRIMAND RIR RESTR EPD FOP Suspended: RESTR EPD FOP

- 20061122:      Article 134 (General article; Disorderly Conduct, Drunkenness)
         Awarded: RESTR EPD RIR FOP Suspended: NONE

SCM: NONE                

SPCM: NONE               

CC: NONE

Retention Warning Counseling: 2

- 20060822:      For accessing inappropriate websites while on a government computer.

- 20060822:      For deficiencies related to Article 92 violation.


Administrative Corrections to the Applicant’s DD 214


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

         Block 29, Dates of Time Lost During This Period, should read “20070223-20070723, 20070724-20070801”
         Block 12c, Net Active Service This Period, should read: “020314”
        
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 11, effective 31 May 2005 until Present, Article 1910-106, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

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 the discharge was inequitable because she suffered from PTSD and MST which resulted in self-medication with alcohol.

Decision

Date: 20150701   DOCUMENTARY REVIEW      Location: Washington D.C.        Representation: Civilian Counsel

By a vote of 5-0 the Characterization shall remain UNDER OTHER THAN HONORABLE CONDITIONS .
By a vote of 5-0 the Narrative Reason shall remain IN LIEU OF TRIAL BY COURT MARTIAL .

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 she deployed in support of a contingency operation and was, as a consequence of that deployment, diagnosed with either PTSD or TBI. A review of her record revealed that she did not deploy in support of a contingency operation, and so her 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 completed a thorough review of the circumstances that led to her discharge and the discharge process to ensure her discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included two NAVPERS 1070/613 (Page 13) warnings, two nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation) and Article 134 (General article; Disorderly Conduct, Drunkenness). On 20 August 2007, the Applicant submitted her request for separation in lieu of trial by court-martial (SILT). In the request for discharge, the Applicant elected her right to consult with counsel, acknowledged that she fully understood the elements of the offenses for which she was charged, and was guilty of those offenses. She certified a complete understanding of the negative consequences of her actions and that characterization of service could be Under Other Than Honorable Conditions which might deprive her of virtually all veterans benefits based upon her current enlistment.

Issue 1: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends the discharge was inequitable because she suffered from PTSD and MST which resulted in self-medication with alcohol. The Applicant provided a statement and medical records with her application. The Applicant had two NJPs documented in October and November of 2006 for underage drinking and drunkenness. After her first in-service alcohol incident, she was diagnosed as alcohol dependent and scheduled for rehabilitation treatment which was postponed until 16 November 2006 due to her second alcohol incident.
On 23 July 2007, the Applicant went UA until apprehended on 23 July 2007.

In her statement, the Applicant claimed PTSD from a burn and a separate event where she was a first responder to a boiler explosion with fatalities. The partial thickness second degree burn occurred in 01 November 2006 after the first NJP and the boiler incident occurred in December 2011 after both of the alcohol incidents but before the UA. The Applicant alledged a sexual assault in January 2007 but did not desire to speak with a Sexual Assault Vicitim Intervention (SAVI) representative.
Upon a review of the Applicant’s entire record, the evidence does not show that the PTSD was a sufficient mitigating factor to excuse the Applicant’s willful misconduct or accountability concerning her serious misconduct. Further, prior to her discharge, the Applicant consulted with counsel and requested separation in lieu of court martial with informed consent and understanding the negative consequences of receiving a characterization of Under Other Than Honorable Conditions. Relief denied.




Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, 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 UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain IN LIEU OF TRIAL BY COURT MARTIAL. The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of her 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 , or http://www.secnav.navy.mil/mra/bcnr/Pages/default.aspx 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

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