Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: Garcia-Anglin, Nuchy CIV CORB, NDRB
Company: NCPB

Docket No. ND14-00224

ex-HM3, USN

Current Discharge and Applicant’s Request

Application Received: 20131122
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: GENERAL (UNDER HONORABLE CONDITIONS)
		       Narrative Reason change to: NONE REQUESTED

Summary of Service
Prior Service:
Inactive:	USNR (DEP)	20030606 - 20040201  COG	Active:	NONE

Pre-Service Drug Waiver:  NO

Period of Service Under Review:
Date of Current Enlistment:  20040202	Age at Enlistment:  31
Period of Enlistment:  4 Years  12 MONTHS Extension
Date of Discharge:  20071114	Highest Rank/Rate:  HM3
Length of Service:  03 Year(s)   09  Month(s)   13 Day(s)
Education Level:  12	AFQT:  54
Evaluation Marks:	Performance:  4.0 (2)	Behavior:  4.0 (2)	OTA:  4.15

Awards and Decorations (per DD 214):	GCM NDSM GWOTSM SSDR (2) MUC HSM

Periods of UA/CONF:  NONE

NJP:  1

- 20070410:	Article 112a (Wrongful use, possession, etc. of controlled substances, cocaine)
	Awarded: RIR FOP RESTR EPD  Suspended:  RIR FOP

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 28, Narrative Reason for Separation, should read: “MISCONDUCT (DRUG ABUSE)”

The NDRB will recommend to the Commander, Navy Personnel Command, PERS-312A, 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:	☐

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

Applicant’s Issues

1.	The Applicant contends his in-service conduct and service in combat warrants an upgrade.
2.	The Applicant contends Post-Traumatic Stress Disorder (PTSD) mitigates his misconduct.
3.	The Applicant contends he suffered a lot of setbacks due to his father’s terminal illness and death.
4.	The Applicant contends his Nonjudicial Punishment (NJP) was punishment enough.
5.	The Applicant contends his post-service conduct is worthy of an upgrade.

Decision

Date:  20140529	     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 (DRUG ABUSE).

Discussion

As a result of the Applicant’s claim of PTSD, in accordance with U.S. Code, Title X, Section 1553 (d)(1), the Naval Discharge Review Board included a member who is a physician, clinical psychologist, or psychiatrist.  In accordance with section 1553 (d)(2), the service secretary expedited a final decision and accorded the case sufficient priority to achieve an expedited resolution.  The Applicant’s service record documents completion of a deployment to Al-Asad, Iraq in 2006, conducting combat operations in support of Operation IRAQI FREEDOM.

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 his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included one nonjudicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ): Article 112a (Wrongful use, possession, etc. of controlled substances, cocaine, 1 specification).  The Applicant did not have a pre-service drug waiver prior to entering the Navy.  Based on the Article 112a violation, processing for administrative separation is mandatory.  When notified of administrative separation processing using the administrative board procedure, the Applicant exercised his rights to consult with a qualified counsel, submit a written statement, and request an administrative board.  The Applicant’s administrative board determined, by unanimous vote, that the preponderance of the evidence supported the specified misconduct, that an unsuspended separation was warranted, and that an Under Other Than Honorable Conditions characterization was warranted.  The Applicant and his counsel submitted a letter of deficiency in rebuttal to the findings of his administrative board, which was considered by his chain of command as they forwarded recommendations to the Separation Authority for a General (Under Honorable Conditions) discharge characterization.  The Separation Authority reviewed all recommendations and ultimately decided to support the findings of the administrative board and ordered the Applicant to be discharged Under Other Than Honorable Conditions for Misconduct (Drug Abuse).

Issue 1:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends his in-service conduct and service in combat warrants an upgrade.  The Applicant was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation.  The characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation.  Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition.  Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Navy to maintain proper order and discipline.  Violation of Article 112a is one such offense requiring mandatory processing for administrative separation regardless of grade, performance, or time in service.  This usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial.  However, his command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge.  The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances.  Relief denied.

Issue 2:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends PTSD mitigates his misconduct.  The NDRB requested all records of medical treatment, both active duty and post-service, from the Department of Veterans Affairs (VA).  The records received from the VA failed to document any conclusive diagnosis of PTSD.  There was ample mention of “PTSD-like” symptoms in the Applicant’s recommendation for separation package and his in- and post-service treatment records.  Both in- and post-service treatment records show several requests for evaluation to determine if a diagnosis of PTSD was warranted.  A comprehensive review of both his in- and post-service medical records reveal significant other mental health concerns and a lifetime history of substance addiction.  In-service diagnoses included Major Depressive Disorder (MDD), single episode; alcohol abuse - episodic; adjustment disorder with mixed emotional features; alcohol abuse; cocaine abuse; alcohol dependency; adjustment disorder with anxiety and depressed mood; cocaine dependence; substance abuse disorders; and MDD, recurrent.  Significantly, most of the documentation from in- and post-service shows his main issue was grief over the death of his father.  This includes statements from the Applicant at the time of his misconduct.  Current VA treatment records indicate the Applicant is currently residing in VA provided housing undergoing a California Proposition 36 substance abuse treatment program due to a felony drug conviction.  While treatment notes from this program indicate he is undergoing discussions concerning PTSD, there remains no current PTSD diagnosis in the Applicant’s in- or post-service treatment record.  As neither in- and post-service treatment records support the Applicant’s claim of PTSD, nor has the Applicant provided any evidence of a diagnosis of PTSD from any other private mental health treatment provider to document his claim, the NDRB is unable to establish this contention as a basis for mitigation or consideration as an extenuating circumstance.  Further, the NDRB determined he was responsible for his actions, was properly held accountable for his misconduct, and his various mental health issues and substance addictions do not mitigate his misconduct.  Relief denied.

Issue 3:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends the characterization of his discharge should be upgraded, because he suffered a lot of setbacks due to his father’s terminal illness and death.  The NDRB recognizes that serving in the military is challenging.  Most servicemembers, however, serve honorably and therefore earn their Honorable or General discharges.  In fairness to those servicemembers, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  While the Applicant may feel that his family difficulties were a contributing factor to his misconduct, they do not mitigate his disobedience of the orders and directives that regulate good order and discipline in the Naval Service, demonstrating he was unsuitable for further service.  The NDRB determined the Applicant’s personal problems were not mitigating factors in his misconduct.  Relief denied.

Issue 4:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends his NJP was punishment enough.  The Applicant fully exercised his rights during his discharge processing and freely elected to plead guilty at NJP and avoid going to a court-martial.  The NDRB found the majority of the punishment imposed during the Applicant’s NJP was suspended.  Further statements in the record also indicated that the portions of the NJP punishment that were not suspended were also not rigidly enforced as the Applicant was allowed off of restriction to visit his terminally ill father at least twice per week.  Administrative discharge processing is a separate and distinct process from punitive proceedings such as NJP or court-martial.  Furthermore, administrative discharge processing is administrative in nature and not considered a form of punishment.  Based upon the evidence of record, the NDRB found no improprieties or inequities in the Applicant’s discharge processing.  Relief denied.

Issue5:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends his post-service conduct is worthy of an upgrade.  The NDRB is authorized to consider post-service factors in the re-characterization of a discharge.  However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question.  Besides the Applicant’s statement on the DD Form 293, he failed to provide any new documentary evidence on his behalf for post-service consideration.  The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum with the recognition that completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration.  Post-service VA treatment records indicate the Applicant had significant, undisclosed substance abuse before he entered the service and has continued to have substance abuse issues post service.  Without favorable post-service documentary evidence, the Board determined the awarded characterization of service shall remain Under Other Than Honorable Conditions.  Relief denied.

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.  Therefore, the awarded characterization of service shall remain UNDER OTHER THAN HONORABLE CONDITIONS and 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 for additional information.

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.

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:  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 	RESTR - Restriction	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	CBW - 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