Search Decisions

Decision Text

NAVY | DRB | 2009_Navy | ND0900297
Original file (ND0900297.rtf) Auto-classification: Denied

ex-AA, USN
Current Discharge and Applicant’s Request
Application Received: 20081125
Characterization of Service Received:
Narrative Reason for Discharge: DRUG ABUSE
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
Inactive: US N R (DEP)      20020920 - 20021122     Active:  

Period of Service Under Review:
Date of Enlistment: 20021123     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20050718      Highest Rank/Rate: AN
Length of Service : Y ear ( s ) M onth ( s ) 26 D a y ( s )
Education Level:        AFQT: 69
Evaluation M arks:         Performance: 3.5 ( 2 )      Behavior: 3.0 ( 2 )        OTA: 3.26

Awards and Decorations ( per DD 214):     

Periods of CONF:

NJP :

- 20030224 :       Art icle 12 8 ( Assault )
         Awarded : Susp ended :

- 20040521 :       Article 86 ( UA ) , 2 specifications , 20040330-20040513; 20050510-20050511
         Article 87 (Missing ship movement through neglect)
         Article 95 (Resist apprehension)
         Article 117 (Wrongfully use provoking speeches)
         Article 134 (Wrongfully communicate a threat)
         Awarded : Susp ended :

S CM :

SPCM:

Civilian Arrest:

- 20050127 :       Offense: DUI
         Sentence : NFIR

Retention Warning Counseling :

- 20030224 :       For OIC’s NJP on 20030224 for violation of UCMJ Article 128, Assault




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 :

Pertinent Regulation/Law

 A . The Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 29 April 2005 until Present, 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. Would love the opportunity to use GI Bill, obtain medical coverage and possibly reenlist
2. Was diagnosed with PTSD and foolishly resorted to drugs and alcohol.
3 . “I am clean now” and has completed drug and alcohol programs.

Decision

Date: 20 0 9 0716             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

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 NAVPERS 1070/613 (Page 13) warning, for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Unauthorized absences – 2 specifications totaling approximately 44 days) , Article 87 ( Missing ship’s movement) , Article 95 ( Resist Apprehension by the Master at Arms), Article 117 (Wrongfully use provoking speeches), Article 128 (Assault) and Article 134 (Wrongfully communicate a threat ) . Per the Commanding Officer’s (Naval Air Station Oceana) letter of 21 June 20005 the Applicant was arrested for driving under the influence (DUI) and found guilty on 03 March 2005 by the Norfolk General District Court. Based on the offenses committed by the Applicant, command administratively processed for separation due drug abuse, civilian conviction, misconduct due to the commission of a serious offense and a pattern of misconduct . When notified of Administrative Separation Processing, the Applicant waived rights to consult with qualified counsel, submit a written statement, and request an Administrative Board. While awaiting administrative separation processing for misconduct the Applicant teste d positive for marijuana on two separate urinalysis tests.

: (Nondecisional) The Applicant contends he would love the opportunity to be able to use his Montgomery GI Bill, obtain medical coverage for himself and family and possibly reenlist in the United States Marine Corps or U. S. Army. issues which the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum , specifically the paragraph s concerning and , for additional information regarding these issues .

: (Decisional) ( ) . The Applicant contends he was diagnosed with Post Traumatic Stress Syndrome (PTSD) while serving [on active duty] and foolishly resorted to drugs and alcohol, but is now “clean ” and ha s completed treatment. The NDRB commends the Applicant for staying “clean” and completing the Alcohol Safety Action Program as documented in the Chesapeake Bay Alcohol Safety Action Program Final Report signed 25 July 2006 . However, there is no evidence in the record or provided by the Applican t to support the contention that he suffered from PTSD while on active duty or after he was discharged . The Applicant’s medical records were requested but were not made available to the NDRB, therefore a presumption of regularity was applied in this case. The A pplicant provided a medical record of 03 November 2008 from the Veterans Affairs North Texas Health Care System outlining his current medications. However, this evidence was not sufficient to mitigate the misconduct that resulted in his discharge or to prove the Applicant ha d PTSD. The NDRB determ ined based on the frequency and seriousness of the misconduct committed by the Applicant and the absence of mitigating circumstances that an upgrade is not warranted.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, 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 MISCONDUCT (DRUG ABUSE) .
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 Additional Reviews, Automatic Upgrades, and Post-Service Conduct .


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

Similar Decisions

  • NAVY | DRB | 2014_Navy | ND1400475

    Original file (ND1400475.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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. Relief denied.Summary:...

  • USMC | DRB | 2014_Marine | MD1400800

    Original file (MD1400800.rtf) Auto-classification: Denied

    Relief denied.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 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. ADDENDUM: Information for the Applicant Complaint Procedures : If you believe the...

  • USMC | DRB | 2011_Marine | MD1100831

    Original file (MD1100831.rtf) Auto-classification: Denied

    The Pre-Trial Agreement further stipulated that the charge would be adjudicated at a Regimental Commander’s Nonjudicial Punishment.On 10 March 2008, the Applicant was notified of the command’s intention to recommend that he be administratively separated from the Marine Corps pursuant to paragraph 6210.5 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) - Misconduct (Drug Abuse). The Separation Authority approved the discharge on 09 April 2008, having determined that the...

  • USMC | DRB | 2010_Marine | MD1002156

    Original file (MD1002156.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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/ToCongress member: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD...

  • USMC | DRB | 2009_Marine | MD0900933

    Original file (MD0900933.rtf) Auto-classification: Denied

    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. The Applicant had complained of back problems, but medical professionals could not find anything wrong with his back.The NDRB determined the Applicant met the requirements for separation by reason of misconduct – drug abuse; his PTSD was not a factor at the time of his misconduct;and the awarded...

  • USMC | DRB | 2010_Marine | MD1000256

    Original file (MD1000256.rtf) Auto-classification: Denied

    This issue does not serve to provide a foundation upon which the Board can grant relief; there is no requirement or law that grants the NDRB the authority to re-characterize discharges based solely on the issue of obtaining veterans benefits. Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and service record entries, and the discharge process, the Board found Therefore, the awarded characterization of service shall and the...

  • USMC | DRB | 2015_Marine | MD1500515

    Original file (MD1500515.rtf) Auto-classification: Denied

    The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum , however, completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration. ADDENDUM: Information for the Applicant Complaint Procedures : If you believe the decision in your case is...

  • USMC | DRB | 2014_Marine | MD1401024

    Original file (MD1401024.rtf) Auto-classification: Denied

    Relief denied.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 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. ” Additional Reviews : After a document review has been conducted, former members are...

  • USMC | DRB | 2013_Marine | MD1301864

    Original file (MD1301864.rtf) Auto-classification: Denied

    The Applicant’s service record documents completion of a deployment to Afghanistan from November 2010 to February 2011, in support of Operation ENDURING FREEDOM.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. Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record...

  • USMC | DRB | 2012_Marine | MD1200343

    Original file (MD1200343.rtf) Auto-classification: Denied

    The Applicant’s record of serviceincluded 6105 counseling retention warning and one Special Court-Martial for violations of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey an order or regulation, 7 specifications: Wrongfully striking numerous recruits with excessive force to correct the position of the recruits, o/o 24 May-26 Jul 2008; wrongfully hazing numerous recruits, ordering recruits to fall from the standing position to their knees onto the cement ground, o/o...