ex-HTFN, USN

                  Current Discharge and Applicant’s Request

Application Received:  20081112
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: USNR (DEP)   19990422 - 19990503   Active:

Period of Service Under Review:
Date of Enlistment:  19990504     Age at Enlistment:
Period of Enlistment:   Years   Extension
Date of Discharge:  20020724 Highest Rank/Rate:  HT3
Length of Service:   Year(s)     Month(s)   21 Day(s)
Education Level:       AFQT:  73
Evaluation Marks:      Performance:  2.7 (3) Behavior:  3.7 (3)     OTA:
3.14

Awards and Decorations (per DD 214):

Periods of UA/CONF:

NJP:
    - 20020628:  Article 86 (UA, 20020617 - 20020618 (1 day))
      Article 92 (Disobey a lawful order)
      Article 112a (Wrongful use, possession of controlled substance,
             marijuana)
      Awarded:     Suspended:


SCM:        SPCM:      CC:


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 Representation:
      From Congress member:

                    Other Documentation:

                          Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 33,
effective 16 July 2001 until 21 August 2002,
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.

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 92 (failure to
obey order), and Article 112a (drug use).



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

                             Applicant’s Issues

1. Applicant wants to use his VA benefits and services
2. Was self-medicating due to PTSD.
3. Seeks an upgrade of discharge to Honorable.

                                  Decision

Date:  20090820      Location:  Washington D.C.   Representation:
Department of Veterans Affairs

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

                                 Discussion

:    which the Board does not have the authority to grant the relief
requested by the Applicant.  The Applicant is directed to the Addendum,
specifically the paragraph concerning , regarding .

:  ()  . The Applicant contends that he was using marijuana to self-
medicate due to his PTSD, and would like to get his discharge upgraded to
honorable to be eligible for VA benefits. The Applicant’s condition of PTSD
does not refute the presumption of regularity in this case.  The evidence
of his medical record does demonstrate that at the time of offense, the
Applicant possessed substantial capacity to appreciate the wrongfulness of
his conduct, and possessed the ability to conform his behavior to the
requirements of law.  Therefore, the Applicant’s psychiatrist determined
that at time of the offense, the Applicant’s ability to adhere to proper
conduct was not impaired.  In addition, the Applicant told his psychiatrist
that he didn’t care if he was kicked out of the Navy.

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 one non-judicial punishment (NJP)
for violations of Uniform Code of Military Justice (UCMJ) Article 86
(unauthorized absence), Article 92 (disobeying a lawful order), and Article
112a (drug use, wrongful use of controlled substance, marijuana).  In
addition, the Applicant had a pre-drug waiver entering the Navy for the use
of marijuana at four different occasions.  The drug level (marijuana) in
the Applicant’s system for the first urinalysis test dated June 2, 2002 was
233ng/ml, well above the threshold level used by Navy Drug Lab testing
(15ng/ml).  The Applicant again tested positive on July 22, 2002 for
marijuana, with a higher drug level in his system (331ng/ml).  The NDRB
advises the Applicant that certain serious offenses
warrant separation from the service in order to maintain good order and
discipline.  Violation of Article 112a is one such offense requiring
mandatory proceeding for separation, regardless of time in service or
grade.  Violations of this policy often result in administrative separation
and an unfavorable characterization of discharge; however, commanders may
seek a punitive discharge and confinement through special or general court-
martial.  The command opted for an administrative discharge.  Relief
denied.

For the Applicant’s edification, the NDRB is authorized to consider post-
service factors in the recharacterization of a discharge.  However, 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 the service.  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.  As noted in prior
correspondence to the Applicant, documentation to help support a post-
service conduct upgrade may include: 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; 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 previous in-service
misconduct was an aberration and not indicative of the member’s overall
character.

Besides the Applicant’s DD Form 293, the Applicant provided no
documentation for review.  Should the Applicant feel his post service
conduct becomes substantial enough to warrant a personal appearance
hearing, veterans organizations such as the American Legion are willing to
provide guidance to assist former service members in their efforts to
obtain a discharge upgrade.

The Applicant noted in his DD Form 293 that the Department of Veterans
Affairs upgraded his discharge to honorable.  Decisions by the VA to
provide former service members with certain VA benefits do not effect
previous discharge decisions made by the Department of the Navy as benefit
criteria used by the VA is different than discharge criteria used by the
Navy.

Summary:  After a thorough review of the available evidence, to include the
Applicant’s summary of service,  record entries, and discharge process, the
Board found    Therefore, the awarded characterization of service shall
remain Under Other Than Honorable, and the narrative reason for separation
shall remain Misconduct.


                  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 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 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 NDRB 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 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