Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: jennifer.miles
Company: NCPB

Docket No. ND10-00464

ex-ACAN, USN

Current Discharge and Applicant’s Request

Application Received: 20091127
Characterization of Service Received: (per DD 214) GENERAL (UNDER HONORABLE CONDITIONS)
Narrative Reason for Discharge: (per DD 214) MISCONDUCT
Authority for Discharge: (per DD 214) 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)	19980325 - 19980831  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  19980901	Age at Enlistment:  18
Period of Enlistment:  4 Years  15 MONTHS Extension
Date of Discharge:  20020816	Highest Rank/Rate:  AC3
Length of Service:  03 Year(s)   11  Month(s)   16 Day(s)
Education Level:  11 [HS graduation granted based on Job Corps Service Hours]    AFQT:  67
Evaluation Marks:	Performance:  4.0 (3)	Behavior:  2.67 (3)	OTA:  3.30

Awards and Decorations (per DD 214):	NMCAM NDSM  

Periods of CONF:  NONE

NJP:  2

- 19990401:	Article 86 (Absence without leave; failure to go to appointed place of duty, 2 specifications)
		Specification 1: from 2200(19990303) to 0330 (19990304)
		Specification 2: from 0630 (19990304) to 0800 (19990304)
	Article 92 (Failure to obey order or regulation – underage possession and consumption of alcohol)
	Awarded: FOP RESTR EPD   Suspended:  NONE

- 20020326:	Article 112a (Wrongful use, possession, etc of a schedule I controlled substance – marijuana, 77 ng/ml)
	Awarded: RESTR FOP RIR   Suspended:  NONE

SCM:  NONE	SPCM:  NONE	CC:  NONE

Retention Warning Counseling:  1

- 19990401:	For Violation of UCMJ Article 92: Wrongfully possessing alcoholic beverages while under age 21. 
	Violation of UCMJ Article 86: Absence without leave.

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.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 33, effective 16 July 2001 until 
21 August 2002, 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.

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

Applicant’s Issues

Decisional issues: (1) The Applicant contends that he was separated due to severe anger issues that resulted from a physical assault upon him, and his discharge characterization of service was inequitable because he was not referred for mental health evaluation and treatment.  (2) The Applicant contends that he was suffering from undiagnosed Post-Traumatic Stress Disorder (PTSD) (reference the physical assault) at the time of his misconduct, and this contributed to his misconduct of record.     

Decision

Date:  20110908	          DOCUMENTARY REVIEW	Location:  Washington D.C.	Representation:  NONE

By a vote of 5-0 the Characterization shall remain GENERAL (UNDER HONORABLE CONDITIONS).
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT.

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 NDRB 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 Applicant identified two decisional issues related to the propriety or equity of his discharge action for the NDRB’s consideration.  Additionally, in reviewing the Applicant’s issue, the NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety.  The Applicant’s enlistment record reflects entry into military service at age 18, with a waiver to enlistment standards due to pre-service drug use - marijuana.  The Applicant enlisted on a contract for 4 years with a 12 month extension of active duty military service; while in service he completed a second extension for three additional months of obligated service on his original enlistment contract.  The Applicant acknowledged his complete understanding of the Navy Policy Concerning the Illegal Use of Drugs, in writing, as a condition of his enlistment and waiver process.  The Applicant’s record of service reflects one NAVPERS 1070/613 retention-counseling warning being issued during the enlistment period.  Furthermore, the Applicant’s service record contained two nonjudicial punishments for violations of the Uniform Code of Military Justice (UCMJ), specifically: Article 86 (Absence without leave - Failure to go to appointed place of duty, 2 specifications), Article 92 (Failure to obey lawful orders or regulations - underage consumption of alcohol), and Article 112(a) (Wrongful use, possession, etc of a schedule I controlled substance – marijuana, 77 ng/ml).  Based on the Article 112(a) violation, processing for administrative separation from the service was mandatory.

The NDRB reviewed the Applicant’s discharge package to ensure the Applicant was afforded all rights, as required by the Naval Military Personnel Manual (MILPERSMAN).  The Applicant was notified - in writing - of the Command’s intent to process him for administrative separation due to Misconduct (Drug Abuse) in accordance with Article 1910-146 of the MILPERSMAN.  After review by the Staff Judge Advocate, the Separation Authority determined that the evidence of record was sufficient in law and fact to support the proposed reason for discharged.  As such, the Separation Authority directed the Applicant’s discharge with a General (Under Honorable Conditions) characterization of service due to Misconduct (Drug Abuse); he further directed that the Applicant be assigned an RE-4 re-entry code (not recommended for reenlistment).   

Besides his DD Form 293, the Applicant provided no additional documentation on his behalf.   

(Decisional Issues) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant was separated administratively in accordance with Article 1910-146 of the MILPERSMAN - Misconduct (Drug Abuse).  The Applicant does not contend that he did not use the illegal drugs.  Processing for administrative separation for illegal drug use is mandatory by service policy.  Confirmation of the Applicant’s wrongful use of a controlled substance (marijuana) was confirmed by Naval Drug Lab testing.  The Naval Drug Lab goes through a very thorough four-level analysis procedure, which includes immunoassay and gas chromatography/mass spectrometry testing, to accurately test all specimens, ensuring each positive sample is screened, re-screened, confirmed, and all procedures have been followed before a message is released.  Based on the documentation of record, the NDRB determined that the separation was proper and that the narrative reason for separation was accurate.  No relief based on propriety of the discharge action is warranted.

The Applicant contends that he was separated due to severe anger issues that resulted from a physical assault upon him, and his discharge characterization of service was inequitable because he was not referred for mental health evaluation and treatment.  The Applicant’s discharge was not due to committing a serious offense violation or for having established a pattern of misconduct; he was discharged due to his wrongful use of a schedule I controlled substance - marijuana.  Violation of Article 112(a) is an offense that requires mandatory processing for administrative separation, regardless of grade, combat experience, or time in service.  This action usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge with the possibility of confinement, if adjudicated and awarded as part of a sentence by a special or general court-martial.  The command did not refer the Applicant for a court-martial, but opted instead for the lesser administrative discharge process.  A review of the Applicant’s service record and discharge recommendation yielded no indications of separation due to any anger management issues; the sole criteria for the discharge action was the Applicant’s wrongful use of drugs in violation of service policy – which the Applicant clearly understood as part of his enlistment waiver process for pre-service drug use.
 
The Applicant’s application for a review of his discharge contends that he was diagnosed with PTSD (non-combat related).  As such, the NDRB reviewed the Applicant’s record of service to determine if PTSD may have been a contributing factor for the Applicant’s misconduct of record.  The NDRB requested the Applicant’s service medical records and any post-service VA medical records to validate the diagnosis of PTSD, the severity of the disorder, and whether it may have been a contributing or mitigating factor in relation to the equity of the discharge.  The Department of Veterans Affairs was unable to locate the service member’s official medical records for the Board’s review.  The Applicant provided no documentation to substantiate his claim of a diagnosis of PTSD related to an in-service physical assault or his claim of a post-service diagnosis of being Bipolar.  Since the NDRB could not fully evaluate the Applicant’s contention, the NDRB relied on a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced any documented evidence for the NDRB’s consideration, to support the contention the Applicant deserves an upgrade in characterization.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  As such, the NDRB discerned no impropriety or inequity and determined the Applicant’s discharge was proper and equitable.  

Characterization of service at discharge is the recognition of a service member’s performance and conduct during a period of enlistment and is not necessarily dependent upon the narrative reason for separation.  When the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under Honorable conditions.  A General (Under Honorable Conditions) discharge is appropriate if the member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance of duties outweigh the positive aspects of the member’s military record.  Based on the evidence of record, the NDRB determined that the Applicant’s willful and deliberate violation of Article 112 (a), coupled with his previous nonjudicial punishment for misconduct and his retention-counseling warning, did reflect a significant departure from that conduct expected of a service member.  The Applicant’s misconduct outweighed the positive aspects of his military record; as such, the awarded characterization was appropriate, was equitable, and exceeded the characterization of discharge normally received by others in similar circumstances.  Accordingly, an upgrade would be inappropriate.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service and medical record entries, and discharge process, the NDRB determined that the discharge was proper and equitable.  Therefore, the awarded characterization of service shall remain GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain MISCONDUCT.  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his discharge.  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews and Post-Service Conduct.

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), 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 - Nonjudicial 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