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NAVY | DRB | 2008_Navy | ND0801623
Original file (ND0801623.rtf) Auto-classification: Denied

ex-SR, USN
Current Discharge and Applicant’s Request
Application Received: 20070729
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3630620

 Applicant’s Request:      Characterization change to:      
         Narrative Reason change to:      

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        19941022 - 19950319     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19950320 P eriod of E nlistment : Years Extension Date of Discharge: 19960322
Length of Service: Y ear( s ) M onth( s ) 03 D a y ( s ) Education Level: Age at Enlistment: AFQT: 53
Highest Rank/Rate: SR Evaluation M arks: Performance: NOB          Behavior: NOB    OTA: NOB
Awards and Decorations ( per DD 214):      NDSM

Periods of C ONF :

NJP s :

19951215 :        Article 112a (Drug abuse, wrongful use of a controlled substance: marijuana)
         Article 134 (Disorderly conduct).
          Awarded: Suspended: ( VACATED 19960103)

19960105 :        Article (Failure to obey a lawful order by consuming alcohol while in a restricted status).
         Article 134 (Breaking restriction)
         Article 86 (UA: Failure to go to appointed place of duty - restricted muster).
          Awarded : Susp ended: for 1 month.

S CM s :   SPCM s :   C C :      Retention Warning :

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 /To Representat ion :            From /To Congress m ember :         

Oth er Documentation (Describe) :




DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT
Applicant’s Issues

 1.        Applicant claims his discharge was not handled in good faith.
2.       Applicant seeks consideration for mitigating circumstances (mental health issues).

Decision

Date : 20 09 0521             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall .

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 Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant's record of service included two retention warnings and two NJPs for violations of the Uniform Code of Military Justice: Article 86 (unauthorized absence, failure to go to appointed place of duty), Article 92 (failure to obey an order or regulation, consuming alcohol while in a restricted status), Article 112a (wrongful use of a controlled substance, marijuana), and Article 134 (2 specifications, breaking restriction and disorderly conduct). The NDRB advises the Applicant certain serious offenses warrant separation from the service to maintain good order and discipline. Violation of Article 112a is one such offense requiring, at a minimum, mandatory processing for an administrative separation which usually results in an unfavorable characterization of discharge although commanders may seek a punitive discharge and confinement if adjudicated by a special or general court-martial. The command did not pursue a punitive discharge but opted instead for an administrative discharge. When processed for separation, the Applicant waived his rights to consult with qualified counsel, submit a written statement, and request an administrative discharge board.
Issue 1: (Decisional) (Propriety) RELIEF NOT WARRANTED. The Applicant contends the discharge was not handled in good faith by the Navy because it was not conducted in a timely manner and that the Navy did not use all the resources at its disposal to discover the latent health problems that possibly contributed to his misconduct. This contention stems from the Applicant's command terminating a physical evaluation board for the Applicant's knee following his positive urinalysis for marijuana and other offenses. During its review, the Board determined that the Navy did act in good faith. For the Applicant's edification, it is not uncommon for a medical determination from start (diagnosis and treatment) to finish (medical board evaluation/ determination to notification/separation of service member) to take six months or more, depending on the medical issue(s) and/or number of case loads the Physical Evaluation Board (PEB) is reviewing at that time.
The Applicant was first seen for his knee problem on 15 June 1995 and was diagnosed with Bilateral Patellofemoral Syndrome, which required a Medical Board to review his case. The PEB, on 27 November 1995, determined the Applicant was eligible for 10 percent disability. The PEB notified the Applicant on 30 November 1995, that he had until 15 December 1995 (15 calendar days) to accept the PEB's determination. Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. The Applicant was charged with Article 134 (Disorderly conduct) on 23 November 1995 and Article 112a (Drug abuse: Marijuana) on 2 December 1995. These charges were adjudicated at Captain's Mast on 15 December 1995. Although the other charges were minor in nature, the drug abuse misconduct, as stated above, resulted in mandatory processing, which stopped all disability evaluation proceedings in progress. The Applicant was evaluated and refused LEVEL III treatment on 25/26 January 1996 for his drug/alcohol dependence. For further information, the Applicant is directed to the Addendum, specifically the paragraph concerning Medical Conditions and Misconduct.
Issue 2: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends mitigating circumstances (mental health issues) were a contributing factor to his misconduct and that the Navy did not properly evaluate and treat him before he was discharged. The Board determined that the Navy had no way of discerning the underlying mental health issues that allegedly manifested in the Applicant, during his enlistment. Nowhere in the Applicant's medical history or examination reports is it noted that he displayed or admitted to mental health issues prior to coming in the Navy, despite a known family history of mental illness which was never documented during enlistment screening. In the Board's opinion, the Applicant was able to function within his work and social environments and any mental health issues he may have possessed were not discernable until his drug incident on 2 December 1995, at which time the Navy did diagnosed him as alcohol/drug dependent and offered him LEVEL III treatment. This treatment includes residential rehabilitation designed for those members who have been formally evaluated and diagnosed as alcohol/drug dependent and who require rehabilitation on a full-time, live-in basis that normally lasts 6 weeks. Unfortunately, the Applicant refused this treatment, and thus an opportunity for Navy medical providers to diagnose the claimed mental health disorders prior to his discharge. Therefore, due to the lack of pre-service mental health issues, the non-disclosure of family history of mental illness, and the failure of the Applicant to accept LEVEL III treatment and accompanying examinations and therapy, the Board determined that is not reasonable to fault the Navy for the undiagnosed mental health issues of the Applicant. Likewise, the Board did not believe that undiagnosed mental health issues were contributing factors to the Applicant's misconduct.

 Summary: After a thorough review of the available evidence, to include the Applicant's summary of service, medical and service record entries, discharge process and evidence submitted by the Applicant, 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.
Pertinent Regulation/Law

A. Navy Military Personnel Manual, (NAVPERS 15560C), Change 9/94, effective 22 July 1994 until
 2 October 1996, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO DRUG ABUSE.

 B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications.


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, 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 Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of noninvolvement 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

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