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NAVY | DRB | 2009_Navy | ND0900028
Original file (ND0900028.rtf) Auto-classification: Denied

ex-AOAN, USN
Current Discharge and Applicant’s Request
Application Received: 20081001
Characterization of Service Received: OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
Inactive: US N R (DEP)      20010130 - 20010226     Active:  

Period of Service Under Review:
Date of Enlistment: 20010227     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20020314      Highest Rank/Rate: AOAN
Length of Service : Y ear (s) M onth s 18 D a ys
Education Level:        AFQT: 48
Evaluation M arks: Performance: NFIR Behavior: NFIR OTA: NFIR

Awards and Decorations ( per DD 214):      NONE

Periods of UA /C ONF :

NJP : 1
- 20011205 : NFIR – the Applicant states it was for being in an unauthorized absence status a few times.
                   Awarded : NFIR Susp ended: NFIR
S CM : SPCM: C C : Retention Warning Counseling :



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 Representat ion :   From Congress m ember :  

Oth er Documentation :         







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

Applicant’s Issues

 1. Seeks service benefits in order to obtain mental health treatment.
2. Discharge inequitable due to mitigating circumstances.

Decision

Date: 20 0 9 0821             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 discharg e if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of g overnment al 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 non - judicial punishment (NJP) for o f the Uniform Code of Mil itary Justice (UCMJ): Article 86 (Unauthorized absence ). I n addition, charges were preferred for a court-martial for of the UCMJ: Article 112a (Drug abuse, wrongful use of a controlled substance – c ocaine) ; however the Applicant opted to separate in lieu of trial by court-martial . The Applicant did not have a p re-service drug waiver . Based on the offense committed, processing for administrative separation was mandatory . The NDRB was unable to access the Applicant’s administrative separation package , and presumed regularity in the processing of her discharge .

: (Nondecisional) The Applicant is s eeking a discharge upgrade in order to obtain mental health treatment . 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) ( ) . The Applicant contends her discharge was inequitable due to mitigating circumstances that resulted in her misconduct. The Applicant stated that before she came in the Nav y, she had never used drug s or alcohol and that she was sexually inactive . Per a psychological evaluation dated 23 and 25 October 2001, the Applicant first experimented with alcohol around the age of 15 and first drank to intoxication at age 16. She stated that she began drinking to intoxication on a regular basis at the age of 16, typically confining her alcohol use to weekends. After graduation from high school, she began drinking during the work week and often drank until she vomited or experienced a blackout. After enlistment, the Applicant ’ s alcohol use intensified to daily drinking, usually to the point of blackout (about a half of a fifth). She was treated for alcohol poisoning in the s pring of 2001 and for a suicide attempt while intoxicated in July 2001. The Applicant was sent to LEVEL III treatment in Norfolk, Virginia from 8 October 2001 to 2 November 2001. After treatment, the Applicant returned to her duty station in Puerto Rico and admitted to immediately drinking upon her return , which was in violation of her aftercare program.

T he Applicant stat ed that she never used drugs prior to enlistment. However, in the psychological evaluation dated 23 and 25 October 2001 , the Applicant repor ted that she experimented with m arijuana pri or to enlistment. S he did not disclose this on her enlistment paperwork and therefore was not given a drug waiver. Th e Applicant also admitted to buying c ocaine at a tattoo shop and taking all of it within a 5-hour period. She claims she didn’ t know if the drug given to her at the tattoo shop was c ocaine or not because she had never done drugs nor seen what it was suppose to look like . She also reported th at her father abuse d c ocaine.

Lastly, the Applicant stated that she was sexually assaulted on three different oc casions while in the Navy. U nfortunately , there is no documentation to substantiate any of her statements. Medical records do reveal that the Applicant was having medical issues due to high risk sexual activity, reportedly brought on by her alcohol consumption. In the Board’s opinion, the Applicant had many issues prior to joining the Navy, which she failed to disclose upon enlistment. Her conduct in the Navy warrant ed separation from the service in order to maintain good order and discipline . The Navy tried to help the Applicant through counseling and by sending her to LEVEL III treatment, only for her to return to her “ old ways ” upon returning to her unit. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, medical and service r ecord e ntries and d ischarge p rocess, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain . The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. The Applicant is directed to the Addendum, specifically the paragraphs titled Addit ional Reviews, Service Benefits and Post-Service Conduct .

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 29, effective 11 July 2000 until
21 August 2002, Article 1910-106, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL .

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 .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 112a (Drug abuse, wrongful use of a controlled substance).



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 Association of Service Disable 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 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 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

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