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NAVY | DRB | 2009_Navy | ND0900496
Original file (ND0900496.rtf) Auto-classification: Denied

ex-MMFN, USN
Current Discharge and Applicant’s Request
Application Received: 20081230
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: US N R (DEP)      20020124 - 20020218     Active:  

Period of Service Under Review:
 Date of Enlistment: 20020219     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20040227      Highest Rank/Rate: MM3
Length of Service : Y ear ( s ) M onth ( s ) 09 D a y ( s )
Education Level:        AFQT: 66
Evaluation M arks:         Performance: 3.0 ( 2 )      Behavior: 2.0 ( 2 )        OTA: 2.71

Awards and Decorations ( per DD 214):      ESWP NDSM

Periods of UA /C ONF :

NJP :
- 20040121 :       Art icle 112a ( Drug use, w rongful use of a controlled substance )
         Awarded : Susp ended :

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. No t offered drug and alcohol treatment.
2. Received counseling for depression but was not helpful.
3 . In-service performance.

Decision

Date: 20 0 9 0326             Location: Washington D.C .        R epresentation :

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

 : ( ) . The Applicant contends his characterization of service should be upg rade d to honorable because he was not offered drug and alcohol treatment prior to being discharged for drug abuse. The Applicant has submitted a medical document of 18 November 2008, generated via internet from Mercy Hospital , listing his medical problems which are: Bipolar D isorder , Depression, Polysubstance Dependency, Anxiety Disorder, Adjustment Disorder, Personality Disorder and Human Immunodeficiency Virus Disease. 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 presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package and medical records. The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge or characterization of service, if such a change is warranted.
The Applicant’s service was marred by one NJP for violation of the Uniform Code of Military Justice (UCMJ): Article 112a (Drug abuse). Mandatory processing for separation is required for Sailors who abuse illegal drugs. Separation under these conditions usually results in characterization of service as under other than honorable conditions. The Board found no indication in the record the Applicant was inequitably or improperly denied treatment for his drug use. The Applicant’s allegations he was denied treatment for his substance abuse problems do not refute the presumption of regularity in this case. Per the substance abuse screening results and treatment recommendation of 13 February 2004, the Applicant was screened and recommended for Level 0.5 Alcohol/Drug Impact education course. Furthermore, t he Applicant signed the DD Form 1966 Record of military processing on 14 February 2002, indicating that he had experienced marijuana use prior to entering the military.

Based on the seriousness of the offense committed , pre-service drug use and lack of mitigating or extenuating evidence, the Board determined the awarded discharge was appropriate and an upgrade was not warranted.

Issue 2: ( ) . The Applicant also contends the discharge should be upgraded because the counseling he received for depression was not effective . T here is no evidence in the record nor provided by the Applicant to support the contention he was given ineffective counseling for his depression. The documentation and statements provided by the Applicant outlining his medical and mental c ondition four years after discharge were not sufficient to overcome the presumption of regularity in this case. The Board determined the awarded discharge was appropriate and an upgrade based on lack of counseling for depression would not be appropriate.

Issue 3: ( ) . Additionally, the Applicant is requesting an upgrade in the characterization of service based on i n-service performance , specifically noting his deployment to Iraq . Despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Naval service in order to maintain proper order and discipline. As previously discussed, the Applicant’s service record is marred by award of NJP for illegal drug use, thus substantiating the misconduct for which he was separated. An honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. A discharge under other than honorable conditions is warranted when a member engages in conduct involving one or more acts or omissions that constitute a

significant departure from the conduct expected of members of the naval service. The Board determined the Applicant’s in-service performance was not sufficient to justify an upgrade to his characterization of service to honorable and his awarded discharge was appropriate.

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 . The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 28 April 2005, 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 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 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 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 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 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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