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NAVY | DRB | 2009_Navy | ND0900452
Original file (ND0900452.rtf) Auto-classification: Denied

ex-UTCR, USN
Current Discharge and Applicant’s Request
Application Received: 20081212
Characterization of Service Received:
Narrative Reason for Discharge: MISCONDUCT
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
 Inactive: USNR (DEP)     20020613 - 20020715     Active: 

Period of Service Under Review:
 Date of Enlistment: 20020716      Age at Enlistment:
Period of Enlistment : Years Extension
Date of Discharge: 20040120       Highest Rank/Rate: UTCN
Length of Service: Year(s) Month(s) 05 D ay(s)
Education Level:         AFQT: 33
Evaluation Marks:        Performance: 4.0 (1)     Behavior: 4.0 (1)        OTA: 3.2

Awards and Decorations (per DD 214):    

Periods of UA/CONF:

NJP: NFIR
SCM:

- 20031117 :      Article 86 (UA), 4 specifications                         
                  Specification 1: UA, 20031007 – 20031009 (3 days)
                  Specification 2: UA, 20031011 – 20031014 (4 days)
                  Specification 3: UA, 20031031 – 20031103 (4 days)
                  Specification 4: Go from place of duty, 20031021

         Article 112a (Drug use), 3 specifications
                  Specification 1: Wrongful use of cocaine 20031009
                  Specification 2: Wrongful use of cocaine 20031015
                  Specification 3: Wrongful possession of a “crack pipe”
         Sentence:

SPCM:             CC:               Retention Warning Counseling:

Administrative Corrections to the Applicant’s DD 214

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

         “UNDER OTHER THAN HONORABLE CONDITIONS”
         “ MISCONDUCT ”

The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate.

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), re-issued October 2002, effective 22 August 2002 until 25 January 2004, 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. Believed he should have been medically discharged.
2. Now a law-abiding citizen and productive member of society.
Decision

Date: 20090702            Location: Washington D.C.        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall DRUG ABUSE.
Discussion

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 NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted. The Applicant’s record reflects one summary court-martial (SCM) for admissions of guilt to violating the Uniform Code of Military Justice (UCMJ): Article 86 (Unauthorized absences, 4 specifications totaling 11 days) and Article 112a (Drug abuse − wrongful use of cocaine/possession of a crack pipe, 3 specifications). The Applicant also admitted to pre-service drug use on his Record of Military Processing, DD Form 1966 signed on 11 June 2002. Mandatory processing for separation is required for Sailors who abuse illegal drugs. Pursuant to the Commanding Officer’s (U.S. Naval Mobile Construction Battalion SEVENTY-FOUR) letter of 17 December 2003, the Applicant was notified of administrative processing due to Misconduct – Drug Abuse, waived his Board and was recommended for an Under Other Than Honorable Conditions (OTH) characterization of service. Per the Commander’s (First Naval Construction Division) letter of 20 January 2004, the Applicant was approved for discharge due to Misconduct – Drug Abuse with a characterization of OTH.

 : (Decisional) ( ) . In seeking an upgrade to General (Under Honorable Conditions), the Applicant contends he should have been medically discharged because he served his country honorably until he returned from Southwest Asia and began having trouble with panic attacks, nightmares, and depression. The Applicant further contends his drug use began upon returning from the Middle East after one of his fellow service members offered him cocaine which seemed to provide short-term relief of his symptoms. 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 (see the attached Addendum for additional information on Medical Conditions and Misconduct ). However, w hen reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline. The medical note from the Branch Medical Clinic Gulf Port Mississippi of 19 January 2004 indicates the Applicant was diagnosed with Post Traumatic Bipolar Disorder, completed a 28-day intensive inpatient rehabilitation program for alcohol and cocaine use, and would require continued psychiatric follow-up upon discharge. The Board reviewed the evidence of record, which included the Applicant’s statement, medical records from the U.S. Department of Veterans Affairs, statement of the Applicant’s mother, and other service medical records and concluded there was not a connection between the Applicant’s misconduct and his medical condition. The Board also determined the Applicant’s contention that his drug use began after returning from the Middle East is without merit and contradicted by the evidence of record indicating the Applicant used drugs prior to entering the military.

Additionally, the Board determined separation due to Misconduct - Drug Abuse was proper based on the Applicant’s admission to the use of cocaine and wrongful possession of a crack pipe and that the characterization of OTH was warranted based on the seriousness of the offenses committed and the lack of mitigating evidence. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an Honorable characterization of service.

Issue 2: (Decisional) ( ) . The Applicant contends he is now a law-abiding citizen and a productive member of society, is drug-free, attends Narcotics Anonymous (NA) meetings for his addiction, attends church every Sunday, and helps other veterans who are in a similar situation. The Applicant provided one character reference from his mother and post-service medical documentation. While the Board applauds the Applicant’s post-service efforts, the Board determined he did not provide enough evidence to verify his post-service conduct or form a basis of relief. The Applicant is directed to the Addendum, specifically the paragraph titled Post-Service Conduct for additional information regarding this issue.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and 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 until fifteen years from the date of his/her discharge. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Review and Automatic Upgrades.


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 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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