Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: janet.goode
Company: NCPB

Docket No. ND09-00367

ex-ABHAA, USN

Current Discharge and Applicant’s Request

Application Received: 20081203
Characterization of Service Received: (corrected) UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge: MISCONDUCT (DRUG ABUSE)
Authority for Discharge:  MILPERSMAN 1910-146 (DRUG ABUSE)

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

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	20020518 - 20020602  COG	Active:	NONE

Period of Service Under Review:
Date of Enlistment:  20020603	Age at Enlistment:  19
Period of Enlistment:  4 Years  NO Extension
Date of Discharge:  20070822	Highest Rank/Rate:  ABH3
Length of Service:  05 Year(s)   02  Month(s)   20 Day(s)
Education Level:  12	AFQT:  51
Evaluation Marks:	Performance:  NFIR	Behavior:  NFIR	OTA:  NFIR

Awards and Decorations (per DD 214):	NDSM GWOTSM AFEM NUC SSDR NAVY "E" GWOTEM

Periods of UA/CONF:	UA:  0630, 20070529-0730, 20070530 (1 day, 1 hour); 0730, 20070810-1100, 20070814 (4 days, 3 hours, 30 minutes) / CONF:  NONE

NJP:  2
- 20070719:	Article 86 (UA), 3 specifications
	Awarded: RIR FOP EPD  Suspended:  NONE

- 20070724:	Article 91 (Insubordinate conduct toward warrant officer)
	Article 112a (Drugs - marijuana and amphetamines)
	Awarded: RIR FOP EPD  Suspended:  NONE

SCM:  NONE	SPCM:  NONE

CC:  Conviction not found in the record
	- 20060319:	Involved in a single car DUI, with injuries. [Per the Commanding Officer’s (Naval Base Coronado) recommendation of 06 August 2007]   

Retention Warning Counseling:  2

- 20060106:	For failure to meet Physical Readiness Test standards.
- 20060707:	For your medical condition

Administrative Corrections to the Applicant’s DD 214

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

	Block 24, Character of Service, should read: “UNDER OTHER THAN HONORABLE CONDITIONS”

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:	☐	Substance Abuse:		☐	Criminal Records:	☐
	Family/Personal Status:	☐	Community Service:	☐	References:		☐
              Additional Statements:
                             From Applicant:  ☐	From Representation:         ☐	From Congress member:    ☐

                    Other Documentation:  ☐

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

Applicant’s Issues

1. Drug use was secondary to suicidal ideation and depression resulting from PTSD and cognitive impairment.
2. Improperly discharged from hospital without further treatment for depression and suicidal ideation after 2 tours in Iraq.
3. Improperly disciplined because unable to follow through on his commitments due to multiple medications.
4. Was being processed for discharge with a disability and veterans benefits.

Decision

Date:  20090702	DOCUMENTARY REVIEW	Location:  Washington D.C.	Representation:  NONE

By a vote of 4-1 the Characterization shall remain UNDER OTHER THAN HONORABLE CONDITIONS.
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT (DRUG ABUSE).

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 Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.

The Applicant’s record reflects he was awarded two retention warnings and two nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Unauthorized absences – 3 specifications totaling 4 days), Article 91 (Insubordinate conduct toward a petty officer by saying to him, “f*** you, f*** all of you”) and Article 112a (Wrongful use of controlled substances – marijuana and amphetamines).  Additionally, the Commanding Officer’s (Naval Base Coronado) letter of 06 August 2007 indicates the Applicant was involved in a single car DUI  (Driving Under the Influence) and sustained injuries that were determined to be a result of his own misconduct.  He was administratively processed for separation by reason of misconduct based on the commission of a serious offense and drug abuse and subsequently discharged due to drug abuse.

Issue 1: (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends his discharge from the Navy due to drug use was secondary to depression and suicidal ideation resulting from his family problems, post traumatic stress disorder (PTSD) and cognitive impairment (caused by a motor vehicle accident).  The record of evidence reflects on 24 July 2007 the Applicant was admitted to Navy Medical Center, San Diego, California for his first psychiatric hospitalization due to feelings of hopelessness, and suicidal ideation resulting from legal issues, relationship stressors, and increased back pain.  He was diagnosed with Adjustment disorder, depressed mood and PTSD.  However, the medical provider noted that it was unclear to what extent the Applicant’s behavior was secondary to traumatic brain injury, PTSD, depression or because of preexisting character logic traits.  There was no evidence in the record or provided by the Applicant to prove that at the time he used illegal drugs he was mentally incompetent and unable to appreciate the wrongfulness of his actions.  

Furthermore, the evidence of record reflects that upon being advised of his Article 31(b) rights, prior to being awarded NJP, the Applicant provided a personal statement signed 27 July 2007, admitting to smoking weed and snorting amphetamines “perhap’s monthly” – at the most 6 times in the past year”.  The Applicant admitted that his drug use was a big mistake and he was hanging out with the wrong type of people.  Based on the foregoing evidence, the NDRB determined the Applicant’s mental condition and family problems did not mitigate or justify his intentional, consistent abuse of illegal drugs.  The Applicant admitted to the intentional use of a controlled substance and demonstrated he was unfit for further service. 

Additionally, the Applicant makes no mention of, nor provides documented proof that he attempted to use any one of the numerous family support programs sponsored by or for military service members to help him deal with his family problems.  These programs and services, such as Family Advocacy, Navy – Marine Corps Relief Society, Red Cross, the Chaplain, or even Navy medical health personnel if needed, all provide services to members of the military, regardless of grade, in times of need.  

Issue 2-3: (Decisional) (Equity) RELIEF NOT WARRANTED.  The Applicant contends he was improperly discharged from the hospital without further treatment of his depression and suicidal ideation and improperly disciplined because he was unable to follow through on his commitments as a result of taking multiple medications.  These contentions are contradicted by the evidence of record as outlined in the Applicant’s medical record of 24 July 2007 as discussed supra, which reflects that the Applicant was admitted to Navy Medical Center, San Diego, California from 24 -26 July 2007 and treated for depression, suicidal ideations, back pain, etc.  At the time of discharge the Applicant was determined to be non-suicidal and non-homicidal and discharged to his command with the following orders and/or plans and recommendations: 1) the command was to secure transportation and remind patient to report to group sessions, 2) Applicant referred to individual therapy with mental health, and 3) follow up care and discharge medications were arranged by the hospital staff.  Additionally, per the Commanding Officer’s (Naval Base Coronado) letter of 06 August 2007, the Applicant was an administrative burden in that he required constant supervision, had to be escorted daily to and from his medical appointments, and despite numerous counselings his behavior worsened every day resulting in multiple violations of the UCMJ.  Based on the foregoing evidence the NDRB found the Applicant was properly cared for during his hospitalization and upon being released from the hospital he was returned to the command with a comprehensive discharge care plan and instructions for his post-discharge care.  Additionally, there is no evidence in the record or provided by the Applicant to prove that he was either not responsible for his misconduct (repeated drug abuse) or that he should not be held accountable for his actions.  Based on the seriousness of the offenses committed and lack of mitigating evidence, the Board determined an upgrade is not warranted. 

 Issue 4: (Nondecisional) The Applicant contends he was being processed for discharge with a disability and veterans benefits at the time of his discharge.  Per the Abbreviated Medical Evaluation Board Report of 27 November 2006, the Applicant’s second limited duty board started on 10 November 2006 based on a diagnosis of thoracic fracture.  The NDRB does not have authority to grant the Applicant relief pertaining to this issue since Department of Defense Disability Regulations do not preclude a disciplinary separation.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for medical reasons.  The Applicant is directed to the Addendum, specifically the paragraph concerning Medical Conditions and Misconduct for additional information regarding this issue.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and service record entries, and discharge process, the Board found the discharge was proper and equitable.  Furthermore, the awarded characterization of service shall remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain MISCONDUCT (DRUG ABUSE).

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 29 April 2005 until Present, 
Article 1910-146, Separation by Reason of Misconduct - Drug Abuse.

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.

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 Association of Service Disable 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 his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 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

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Non-judicial punishment	SCM – Summary court-martial
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties
	CONF – Confinement	CC - Civilian conviction	CCU - Correctional Custody Unit	BW – Confinement on bread and water

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Nonjudicial punishment	SCM – Summary court-martial	
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties 
	CONF – Confinement		B&W – Confinement on bread and water