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NAVY | DRB | 2009_Navy | ND0900117
Original file (ND0900117.rtf) Auto-classification: Denied

ex-FR, USN
Current Discharge and Applicant’s Request
Application Received: 20080221
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
 Inactive: NONE                                      Active:

Period of Service Under Review:
 Date of Enlistment: 19920814               Period of enlistment : Years              Date of Discharge: 19931119
Length of Service : Active: Y ea r M on ths 03 D a ys        Inactive: Y ea rs M on ths 03 D a ys
Education Level:         Age at Enlistment:       AFQT: 50
Highest Rank /Rate : FA     Evaluation marks: Performance: NFIR       Behavior: NFIR    OTA: NFIR
Awards and Decorations ( per DD 214): W/BRONZE STAR

Periods of UA /C ONF :

NJP :
         19931030 : Art icle 112a ( Drug use), 2 spec ifications:
 - Spec ification 1 : Wrongfully use marijuana, crystal methamphetamine and cocaine
- Spec ification 2 : Wrongfully possess amphetamines
Awarded: Susp ended:

The NDRB did note administrative error(s) on the original DD Form 214:

         “ MILPERSMAN 3630620 ”

The NDRB will recommend to the C ommander, Navy Personnel Command , that the DD 214 be corrected as appropriate.
Types of Documents Submitted

 Related to Military Service:      DD 214:          Service and/or 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 Member of Congress:

Other Documentation (Describe) :
         - Standard Form 180
         - Letter from Department of Veterans Affairs
          - Letter from National Personnel Records Center




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


Applicant’s Issues

 1. Seeking medical benefits from V eterans A ffairs (VA) for trauma sustained while on active duty.
 2. Never received counseling after being sexually abused and diagnosed with Post Traumatic Stress Disorder (PTSD).

Decision

Date : 2008 1016             Location: Washington D.C        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall MISCONDUCT (DRUG ABUSE) .
Discussion
Th is third record review was conducted after a determination the NDRB was not provided a copy of the Applicant ’s entire medical record for the previous record review conducted on 7 July 2008 . Subsequent to the aforementioned record review , additional medical records were provided to the NDRB by the Applicant on 15 July 2007 and by the Department of Veterans Affairs (VA) on 3 September 2008 . To ensure the Applicant received full due process, a new board was convened and the additional medical records were reviewed and considered by the NDRB in making a ‘ de novo ’ de cision .

: The Applicant is seeking medical benefits from the VA for trauma he contends was sustained while on active duty. which the Board cannot form the basis of relief f or which the Applicant petitioned. The Applicant is directed to the Addendum , for additional information regarding .
: ( ) . The Applicant ’s representative contends his discharge is improper because he never received treatment after being sexually assaulted while on active duty. The Applicant contends , as a result of the sexual assault , he developed PTSD and began using drugs. 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. A review of t he Applicant’s medical records reflect s the f ollowing:

1) On 28 August 1992 he was seen at Naval Hospital Branch Clinic for emotio na l stress .

2) On 6 October 1992 he was evaluated by a staff psychologist and found psychologically fit for duty .

3) On 31 May 1993 he was seen by a physician’s assistant aboard the USS NIMITZ for a complain t of a sexual assault that had occurred that morning. There were no physical injuries but he was emotionally upset .

4 ) On 12 July 1993, approximately 42 days later , he reported to the same medical provider of the USS NIMITZ medical
d epartment complaining of testicular pain and admitted to unprotected sexual contact due to the condom breaking. There w ere no notes or medical entries document ed relating to a sexual assault or to PTSD symptoms noted during this visit

5 ) On 26 October 1993, the ship’s chaplain referred him to the USS NIMITZ medical department for evaluation by the senior medical officer after he confess ed to taking various illegal drugs ( c rystal meth , m arijuana, c ocaine and c rack). During this visit it was noted that in May 1993 he was a victim of molestation and in August 1993 he married his first wife . It was also noted his wife miscarried and hi s mother was very ill. The Applicant reported using marijuana while in Seattle two days after learning of his wife’s miscarriage. The record indicates the Applicant had never seen a mental health professional and was not on drugs at the time of the 26 October visit . The documented plan from the medical officer included his continued counseling with the chaplain (currently scheduled fo r daily contact) and a follow up with the medical provider for suicidal ideatio n or states of altered reality.



6 ) On 26 October 1993 a nother medical entry reflects h e was seen at the medical department a second time t he same day, upon being escorted to medical by his chief who was concerned about a possible suicide attempt after the Applicant admitted to drug use and being distraught over the anticipated separation from military service for his misconduct. The Applicant was assured
he would receive help from the V A post service if he were subsequently discharged. The medical assessment indicated the Applicant showed drug abuse , drug dependen ce , and had reactive depression. There was no mention of the sexual assault or PTSD during this visit .

7 ) T he Applicant was seen again on board the USS NIMITZ on 1 November 1993 for a substance dependence screen i ng. During this visit he admitted to three months of polysubstance abuse coupled with alcohol use that cost him approximately $5000.00 per month . The Applicant was assessed as alcohol and drug dependent ; he was recommended for separation and Level III Treatment at the VA program .

8 ) The Applicant’s Report of Medical History , Separation E xamination was completed on 9 November 1993 . It was noted t he Applicant checked yes to the question in section 11 , “ Have you ever had or have you now d epression or excessive worry” and a handwritten commented in section 25 was made noting the worry , etc. was re lated to the wife’s miscarriage . There was no mention by the Applicant of PTSD as the result of a sexual assault.

Based on the foregoing evidence contained in the medical record, the Board determined there was evidence of the alleged sexual assault, but no indication that it precipitated PTSD or mitigated the Applicant’s drug use. The record reflects there were other stressful events occurring in the Applicant life at the time of his misconduct which were more likely to have lead to his drug use.

The Applicant’s contention he never received counseling after being sexually abused is refuted by the evidence contained in the aforementioned medical note of 26 October 1993 , wherein the medical provider indicate d the Applicant was a victim of molestation and would continue to receive counseling with the chaplain (daily contact). There is no indication that the Applicant requested a mental health referral. The Applicant’s allegations he was denied assistance and counseling for sexual assault is not supported by the e vidence in this case. The evidence of record does not support the Applicant ’s allegations nor relieve him a ccountab ility for his actions. There is credible evidence in the record the Applicant used multiple illegal drugs which requires m andatory processing for separation under Navy policy. Separations under these conditions usually result in a characterization of service as under other than honorable conditions.

The documents presented by the Applicant in support of his post service conduct, i . e ., certificate of ordination to perform duties as a minister, letter from the general manager and Diploma from Carrier Transicold School for Truck/Trailer Units, were not sufficient to mitigate the conduct for which he was discharged . Additionally, the Primary Encounter report from the State Department of Corrections of 18 January 2008, wherein the Applicant inquired as to whether his hatred for sexual offenders was caused by the alleged sexual assault was also reviewed by the NDRB and found not to be mitigating evidence. Based on a lack of mitigating factors, post service conduct as evidenced by his current imprisonment and the Applicant’s admission to abuse of numerous drugs, the Board has d etermined upon a third review an upgrade would be inappropriate and is not warranted.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found

Pertinent Regulation/Law

 A . Navy Military Personnel Manual, (NAVPERS 15560C), Change 5/93, effective 5 March 1993 until 21 July 1994,
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 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.

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, provi ded 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 grante d 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.
Employmen t / Educational Opportunities : The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’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 Board 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 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 “PTSD . ” 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 non-involvement 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 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.

Board Membership: The names and votes of the members of the 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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