ex-ADAA, USN

Current Discharge and Applicant’s Request

Application Received: 20141113
Characterization of Service Received:  (corrected) 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)	20001206 - 20001212  COG	Active:	NONE

Pre-Service Drug Waiver:  YES

Period of Service Under Review:
Date of Current Enlistment:  20001213	Age at Enlistment:  20
Period of Enlistment:  4 Years  12 MONTHS Extension
Date of Discharge:  20050914	Highest Rank/Rate:  AD3
Length of Service:  04 Year(s)   09  Month(s)   02 Day(s)
Education Level:  11	AFQT:  53
Evaluation Marks:	Performance:  NFIR	Behavior:  NFIR 	OTA:  NFIR

Awards and Decorations (per DD 214):	NDSM NAVY "E" GCM

Periods of UA:  20050609-20050613, 4 days; 20050620-20050622, 2 days; 20050623-20050624, 1 day; 20050704-20050913, 71 days.

Periods of CONF:  NONE

NJP:  2

- 20050408:	Article 92 (Failure to obey order or regulation)
	Awarded: CCU RIR FOP Suspended:  NONE

- 20050516:	Article 112a (Wrongful use, possession, etc. of controlled substances; Cocaine)
	Awarded: RIR Suspended:  NONE

SCM:  NONE

SPCM:  NONE

CC:  1

- 20031117:	Offense:  Reckless driving on 20030922.  
	Sentence:  Fined $125 plus $79 court costs.

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 24, Character of Service, should read: “UNDER OTHER THAN HONORABLE CONDITIONS”
	Block 28, Narrative Reason for Separation, should read: “MISCONDUCT (DRUG ABUSE)”
	Block 29, Dates of Time Lost During This Period, should read “TL: 20JUN05-22JUN05; 09JUN05-13JUN05; 23JUN05-24JUN05; 04JUL05-13SEP05”
	Block 12c, Net Active Service This Period, should read: “04 06 21”

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:	

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.	The Applicant contends that he needs medical and psychological treatment for mental and physical symptoms of PTSD and alcohol dependence.

Decision

Date:  20150212            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 or TBI, 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.  The Board also conducted a reviewed the Applicant's record to see if he deployed in support of a contingency operation and was, as a consequence of that deployment, diagnosed with either PTSD or TBI.  A review of  the Applicant’s record revealed that he did not deploy in support of a contingency operation, and his case did not warrant an expedited review in accordance with U.S. Code, Title X, Section 1553(d)(1).

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 did not identify any decisional issues to the Board.  However, 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 two nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ):  Article 92 (Failure to obey order or regulation) and Article 112a (Wrongful use, possession, etc. of controlled substances).  The Applicant also had a pre-service drug waiver for misdemeanor possession of marijuana prior to entering the Navy.  Based on the Article 112a violation, processing for administrative separation is mandatory.  The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived his rights to consult with a qualified counsel, submit a written statement, and request an administrative board.  The separation code of HKK does indicate that the Applicant was administratively separated and waived his right for an administrative board.  

Issue 1:  (Nondecisional) The Applicant contends that he needs medical and psychological treatment for mental and physical symptoms of PTSD and alcohol dependence.  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.  

Issue 2:  (Decisional) (Board Issue) (Equity) RELIEF NOT WARRANTED.  During the review of the Applicant’s request for an upgrade, the NDRB considered whether PTSD was a mitigation warranting a discharge upgrade.  The government enjoys 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.  The Applicant’s service record did not contain documentation that that the Applicant was deployed to a combat zone.  The Applicant’s medical and service record did not include documentation of a PTSD or an alcohol dependency diagnosis.   The Applicant provided post-service documentation from Riverside California Department of Mental Health dated 18 September 2014 that he was being treated for PTSD.  The documentation from Riverside Mental Health did not include a detailed diagnosis of the event that led to the treatment or whether the event occurred while the Applicant was on active duty.  The evidence of record did not show that the PTSD was a sufficient mitigating factor to excuse the Applicant’s conduct or accountability concerning his actions.  The Applicant also provided several completion certificates for vocational and rehabilitation programs.  Moreover, certain serious offenses warrant separation from the service to maintain proper order and discipline.  Violation of Article 112a is one such offense requiring mandatory processing for administrative separation regardless of grade 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.  The command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge.  After an exhaustive review, the NDRB determined that PTSD did not mitigate the Applicant’s misconduct.  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.

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