ex-ETSN, 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)       20010823 - 20011031     Active: 

Period of Service Under Review:

Date of Current Enlistment: 20011101    Age at Enlistment:
Period of Enlistment: Years Extension
Date of Discharge: 20060901     Highest Rank/Rate: ET3
Length of Service: Year(s) Month(s) 00 Day(s)
Education Level:        AFQT: 97
Evaluation Marks:        Performance: 3.25 (4)    Behavior: 3.00 (4)      OTA: 3.16

Awards and Decorations (per DD 214):    

Periods of CONF:

NJP:

- 20020327:      Article , wrongfully consuming alcohol under age 21
         Awarded: Suspended:

- 20031211:      Article
         Article
         Awarded: Suspended:

- 20060707:      Article 132 (Frauds against the United States, received BAH at dependent rate after divorce was finalized)
         Awarded: RECOUP OF BAH 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:

         “”
         “”

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 26 April 2005 until 11 June 2008, 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 132, fraud against the United States.

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

Applicant’s Issues

1.       The Applicant wants to be eligible for Veterans Affairs (VA) benefits.
2.       The Applicant contends his discharge is inequitable because he was sexually assaulted by a male shipmate and suffered from Military Sexual Trauma (MST).

Decision

Date: 20150416            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 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. This is the second review by the NDRB of the Applicant’s record, and discharge. The Applicant’s record of service included for of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation; 2 specifications), Article 86 (Absence without leave; 12 days), and Article 132 (Frauds against the United States; received BAH at dependent rate after divorce was finalized, $9037.07). The Applicant was also hospitalized for suicide ideations, and diagnosed by Navy Psychiatrist with Adjustment disorder and depressed mood. The Applicant was recommended for expeditious administrative separation by medical authorities as he was determined to be a risk to himself or others. However, the Separation Authority determined that the Applicant’s misconduct was the primary reason for administrative separation. Based on the offense(s) committed by the Applicant, command administratively processed for separation. 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 an administrative board or a General Court-Martial Convening Authority review. However, the separation code of HKQ on the Applicant’s DD Form 214 indicates he waived his right to an administrative board.

As a result of the Applicant’s claim that a MENTAL HEALTH DIAGNOSIS impacted their 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 physician, clinical psychologist, or psychiatrist. The Applicant’s service record documents the Applicant was diagnosed with a mental health disorder while serving in the armed forces.

: (Nondecisional) The Applicant wants to be eligible for Veterans Affairs (VA) benefits. There is no requirement, or law, that grants re-characterization solely on the issue of facilitating access to VA benefits. 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, this issue does not serve to provide a foundation upon which the NDRB can grant relief.

: (Decisional) () . The Applicant contends his discharge is inequitable because he was sexually assaulted by a male shipmate and suffered from Military Sexual Trauma (MST). The Applicant’s record shows that on 18 October 2004, the Applicant was seen by Family Services personnel for suicide ideations because his wife of four months told him she wanted a divorce. During this visit, the Applicant admitted to being hospitalized for 10 days at age 16 for suicide attempt. The Applicant was referred to Mental Health Service for evaluation. On 26 October 2004, the Applicant was evaluated by Navy Psychiatrist and diagnosed Axis I: Adjustment disorder with depressed mood. The Applicant was prescribed Zoloft for help with sleep, appetite, and mood and returned to full duty. On 7 July 2006, the Applicant was found guilty at NJP for fraudulently collecting $9037.07 of BAH after his divorce that he was not entitled to collect. On 8 July 2006, the Applicant was admitted to Mental Health Unit for suicide ideation after stating: “If I stay on the boat any longer I will kill myself.” The Applicant made statements to his attending psychiatrist that he was sexually assaulted by an unknown shipmate while he was sleeping. He stated that he reported the assault, but claimed his command ignored him because he could not identify his attacker. The Applicant also stated that he fraudulently collected BAH because he was in poor financial condition. Medical authorities determined that the Applicant’s condition represented a risk to himself or other if retained in the Navy, and recommended he be processed for expeditious administrative separation for Adjustment disorder. However, the Applicant had three NJPs on his record, and was in debt to the United States for $9037.07. The Separation Authority chose to process the Applicant for administrative separation based on his Misconduct with Under Other Than Honorable Conditions discharge. After a careful review of the Applicant’s record, and additional post-service documentation provided by the Applicant, the NDRB determined the discharge was proper and equitable as issued. The Applicant had two NJPs prior to his discloser of sexual assault, indicating he was already a disruption to good order and discipline. The Applicant had a suicide attempt prior to entering the Navy that he did not disclose during his enlistment, indicating he had fraudulently entered military service. The Applicant had a suicide ideation during service, but prior to claiming MST, because his new wife wanted a divorce. The Applicant was found guilty at a third NJP for fraud against the United States that he admitted to his psychiatrist was for financial gain. A preponderance of evidence indicates the Applicant’s Misconduct was willful and that he was no longer suited for military service. 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 MISCONDUCT (SERIOUS OFFENSE).

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