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

Docket No. ND09-00761

ex-ABHAA, USN

Current Discharge and Applicant’s Request

Application Received: 20090218
Characterization of Service Received:  UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge: MISCONDUCT
Authority for Discharge:  MILPERSMAN 1910-146 (DRUG ABUSE)

Applicant’s Request:  Characterization change to:  HONORABLE
		       Narrative Reason change to:  NONE REQUESTED

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	20040930 - 20041005  COG	Active:	NONE

Period of Service Under Review:
Date of Enlistment:  20041006	Age at Enlistment:  18
Period of Enlistment:  4 Years  18 MONTHS Extension
Date of Discharge:  20080829	Highest Rank/Rate:  ABH3
Length of Service:  03 Year(s)   10  Month(s)   24 Day(s)
Education Level:  12	AFQT:  43
Evaluation Marks:	Performance:  3.8 (5)	Behavior:  2.6 (5)	OTA:  3.22

Awards and Decorations (per DD 214):	GCM NDSM GWOTEM GWOTSM ESWI

Periods of UA/CONF:  NONE

NJP:  2
- 20071129:	Article 89 (Disrespect toward a superior commissioned officer)
	Article 91 (Contempt or disrespect toward warrant, non-commissioned, or petty officer)
	Article 134 (Drunk and disorderly conduct)
	Awarded: RESTR EPD FOP RIR  Suspended:  RIR

- 20080718:	Article 112a (Drug use - marijuana)
	Awarded: RESTR EPD FOP RIR  Suspended:  NONE

SCM:  NONE	SPCM:  NONE	CC:  NONE

Retention Warning Counseling:  1

- UNDATED:	For disrespect toward a superior commissioned officer, contempt or disrespect toward a petty officer and drunk and disorderly conduct.

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:  ☐

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.

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 112a (Drug abuse). 

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

Applicant’s Issues

1.  Saw shipmate hung and used alcohol and drugs to deal with ordeal after command didn’t help.
2.  Denied a fair hearing and representation.
3.  In-service performance.

Decision

Date:  20090507	DOCUMENTARY REVIEW	Location:  Washington D.C.	Representation:  NONE

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 MISCONDUCT.

Discussion

Issue 1:  (Equity)  RELIEF NOT WARRANTED.  The Applicant contends his discharge should be upgraded to honorable because after seeing one of his shipmates hung inside the barracks room head, he took a couple of puffs of marijuana to cope with this ordeal.  The Applicant also contends he sought help from his command with negative results.  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 NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted.  

The Applicant’s record was marred by one retention warning and two NJP’s for violations of the Uniform Code of Military Justice:  Article 89 (Disrespect toward a superior commissioned officer), Article 91 (Contempt or disrespect toward a warrant, noncommissioned or petty officer), Article 112a (Drug use – marijuana), and Article 134 (Drunk and disorderly conduct).  In a personal statement of 1 February 2009, the Applicant contends after transferring to the USS WASP in 2008 and finding a shipmate dead he started drinking heavily, and was getting drunk almost daily.  This statement is contradicted by the record of evidence which reflects the Applicant had been awarded NJP for disrespectful conduct and being drunk and disorderly on 29 November 2007, prior to the date of the unfortunate discovery of his dead shipmate in 2008.  

The Applicant’s contention he did not receive counseling or help from the command in dealing with the depression nightmares relating to the loss of his shipmate is without merit and contradicted by his own statement of 1 February 2009, wherein the Applicant indicates “at the beginning I was offered help, but I really didn’t want to talk”.  Also, per the undated Administrative Counseling Warning acknowledged by the Applicant after his first NJP, the Applicant was informed assistance was available in the form of counseling and advice from the chain of command, Command Master Chief, Command Chaplain, legal office and medical staff.  

The in-service medical records of the Applicant are not available for review and the Applicant provided no documented information to support the contention he was or currently is suffering from depression or that he informed his chain of command of his mental health problems and did not receive the assistance, or help he requested.  Additionally, the Applicant makes no mention of, nor provides documented proof of his attempted use of any one of the numerous family support programs sponsored by or for military service members.  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.  

Based on the evidence of record and the Applicant’s own admission to illegal drug use, the Board determined there was sufficient basis to separate the Applicant due to illegal drug abuse.  Upon reviewing the evidence of record, and taking into consideration the frequency and seriousness of the offenses committed and evidence presented by the Applicant, the Board determined the other than honorable discharge was appropriate and there was no justification for an upgrade.  Therefore, relief is denied. 

Issue 2:  (Equity)  RELIEF NOT WARRANTED.  The Applicant also feels he was not given a fair hearing or representation by his command.  Per the Administrative Separation Processing Notice of 12 August 2008, the Applicant was notified of administrative separation processing, he acknowledged receipt of the notice and waived all of his rights, except to receive copies of the documents to be forwarded to the separation authority.  He specifically waived his right to consult with qualified counsel, request an administrative board, and to representation by qualified counsel.  Accordingly, his contention he was not given a fair hearing and representation is without merit since he waived these rights.  Therefore, relief is denied.

Issue 3:  (Equity)  RELIEF NOT WARRANTED.  The Applicant also contends he had excellent evaluations, went on three deployments, and had no prior disciplinary problems.  The Board determined the Applicant’s in-service performance was not sufficient to mitigate the misconduct that resulted in his discharge from the Navy.  Additionally, the Applicant’s contention he had no prior disciplinary actions is contradicted by the record of evidence as discussed supra, which indicates he had an NJP on 29 November 2007, approximately seven months prior to the NJP awarded for his abuse of illegal drugs which resulted in his discharge from the Navy.  Accordingly, relief is denied. 

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service  Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found the discharge was proper and equitable.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe that 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:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the 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.  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 Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  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 Board for Correction of Naval Records (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 subsequently is processed for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense 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 Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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.  Examples of documentation that may be provided to the NDRB include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.

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