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

Docket No. ND10-01690

ex-EO3, USN

Current Discharge and Applicant’s Request

Application Received: 20100623
Characterization of Service Received: (per DD 214) UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge: (corrected) MISCONDUCT (DRUG ABUSE)
Authority for Discharge: (per DD 214) MILPERSMAN 1910-146 [DRUG ABUSE]

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

Summary of Service
Prior Service:
Inactive:	USNR (DEP)	20000131 - 20000207  COG	Active:	20000208 - 20050127 HON

Period of Service Under Review:
Date of Current Enlistment:  20050128	Age at Enlistment:  33
Period of Enlistment:  6 Years  NO Extension
Date of Discharge:  20060630	Highest Rank/Rate:  EO2
Length of Service:  01 Year(s)   05  Month(s)   3 Day(s)
Education Level:  12	AFQT:  35
Evaluation Marks:	Performance:  4.3 (3)	Behavior:  3.0 (3)	OTA:  3.62

Awards and Decorations (per DD 214):	GWOTEM NDSM GCM GWOTSM SSDR(2) NAVY "E" NMCCM(w/ combat V) PUC PH CAR

Periods of UA/CONF:  NONE	UA: 20060420 - 20060515 (25 days)

NJP:  1
- 20060418: Article 112a (Drugs – Methamphetamine 2029 ng/ml, Amphetamine 1695 ng/ml)
	Awarded: RESTR FOP RIR(to E-4)   Suspended:  FOP (suspend 6 months)

SCM:  NONE	SPCM:  NONE	CC:  NONE	Retention Warning Counseling:  NONE

Administrative Corrections to the Applicant’s DD 214
The NDRB did note administrative error(s) on the original DD Form 214:

	Block 18, Remarks, should contain the statement: “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 000208 UNTIL 050127”
	Block 12a, Date Entered AD This Period, should read: “2000FEB08”
	Block 28, Narrative Reason for Separation, should read: “MISCONDUCT (DRUG ABUSE)”
Block 29, Dates of Time Lost During This Period, should read “20060420 - 20060515 (26)

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.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 29 April 2005 until 
1 June 2008, 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

1.	Applicant contends his misconduct was self-medication for dealing with symptoms of post-traumatic stress. 

Decision

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

By a vote of 5-0 the Characterization shall change to GENERAL (UNDER 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 governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant identified one decisional issue for the Board’s consideration.  The Board completed a thorough review of the circumstances that led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service for this period of enlistment reflected one nonjudicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ): Article 112a (Wrongful use, possession, etc of a controlled substance, methamphetamine, as evidenced by NAVDRUGLAB msg 28 Mar 2006, D-Methamphetamine 2079 ng/ml, and D-Amphetamine 1695 ng/ml).  The records also revealed the Applicant broke restriction and absented himself from his place of duty (UA) from 20 Apr-15 May 2006 (25 days), which was terminated by his apprehension at a local motel.  Upon his return, he was subjected to a urinalysis that resulted in positive results (NAVDRUGLAB msg 24 May 2006) for D-Methamphetamine 16,840 ng/ml, D-Amphetamine 8264 ng/ml, and THC (marijuana 76 ng/ml).  The Applicant had admitted to pre-service drug use (marijuana, one time) prior to entering the Navy during his enlistment accession processing.  Based on the Article 112a violation, processing for administrative separation is mandatory per the Naval Military Personnel Manual.  When notified of administrative separation processing using the administrative board procedure on 22 May 2006, the Applicant elected to exercise his right to consult with a qualified counsel, but waived his rights to submit a written statement and request an administrative separation board.  After attending drug abuse rehabilitation treatment, the Applicant was separated from the Navy on 30 Jun 2006 with an Under Other Than Honorable Conditions discharge due to Misconduct (Drug Abuse).

Issue 1:  (Decisional) (Equity)  PARTIAL RELIEF WARRANTED.  The Applicant contends his misconduct was self-medication for dealing with symptoms of post-traumatic stress.  The NDRB conducted an exhaustive review of the Applicant’s service and medical records to determine whether his experiences during two deployments to Southwest Asia led to post-traumatic stress or contributed to the misconduct for which he was separated.  The Board discovered that two years prior to the Applicant’s first deployment (Oct 2002-Sep 2003, Kuwait and Iraq), he had been hospitalized for observation and evaluation related to psychiatric issues (28-29 Oct 2000).  The records revealed that on or about 25 Oct 2000, the Applicant and his wife started having marital difficulties.  On or about 28 October, the Applicant had become heavily intoxicated and was subsequently involved in a serious altercation with his wife at home.  The Applicant called the police, whom, after sorting out the details, arrested the Applicant.  Based on the events and statements made by the involved parties, the Applicant was transferred to the hospital for psychiatric evaluation.  During the evaluation, the Applicant admitted to having anger management problems that included getting so mad that he couldn’t think, punching walls when angry, name calling, shouting, and domestic violence. 

The Applicant’s second deployment to Southwest Asia occurred from Feb-Jul 2004, where he was deployed to Fallujah, Iraq.  Documents within the record indicate the Applicant was involved in direct combat operations in which he was subjected to enemy fire, to include being struck in the helmet by a small arms round, and in which he returned fire.  The Applicant’s personal awards include a Purple Heart, Combat Action Ribbon, Navy and Marine Corps Commendation Medal (w/ combat V), and Presidential Unit Citation (unit award).  The records do not reveal any significant medical issues until a 20 Jan 2006 ER visit, in which he complained of continuing chest pain and heartburn.  There were no significant personal issues with the Applicant until 28 Mar 2006 when the Applicant’s command received the Naval Drug Lab message confirming the Applicant’s 

illegal use of Methamphetamine.  Two weeks later, on 12 April 2006, the records annotate the Applicant had been referred to Family Advocacy but was classified as “non-compliant” after not participating.  The Applicant went to Captain’s Mast on 18 Apr and subsequently went UA on 20 Apr until he was apprehended on 15 May 2006.

After careful examination and analysis of the records, and in light of the Applicant’s extensive direct combat operations and wounding during his deployment to Fallujah, Iraq, the NDRB determined that some mitigation was warranted for his misconduct.  As a result, the NDRB voted that partial relief was warranted in an upgrade of his discharge to General (Under Honorable Conditions).  Full relief to Honorable was not granted due to the serious and repeated nature of the illegal drug use and unauthorized absence.  Partial relief warranted.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries and the administrative separation process, the Board found the discharge was proper at the time of discharge.  However, after examination and consideration of all the available evidence, the Board found that the awarded characterization of service shall change to GENERAL (UNDER HONORABLE CONDITIONS) but the narrative reason for separation shall remain MISCONDUCT (DRUG ABUSE).  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, Automatic Upgrades, 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