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NAVY | DRB | 2009_Navy | ND0901283
Original file (ND0901283.rtf) Auto-classification: Denied

ex-SR, USN
Current Discharge and Applicant’s Request
Application Received: 20090414
Characterization of Service Received: UNDER OTHER THAN HONORABLE CONDITIONS
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)        20050409 - 20050921     Active:  

Period of Service Under Review:
Date of Enlistment: 20050922     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20080107      Highest Rank/Rate: SN
Length of Service : Y ear ( s ) M onth ( s ) 17 D a y ( s )
Education Level:        AFQT: 35
Evaluation M arks:         Performance: 2.0 ( 1 )      Behavior: 1.0 ( 1 )        OTA: 2.33

Awards and Decorations ( per DD 214):     

Periods of UA : 0700, 20070321 – 1300 , 20071128 (252 days )

NJP :
- 20070307 :       112a (W rongful use of a controlled substance, marijuana/cocaine )
         Awarded : Susp ended :

S CM :

SPCM:

C C :

Retention Warning Counseling : NFIR

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. Feels his “less than honorable” discharge was a mistake.
2. Not properly diagnosed.

Decision

Date: 2010 0128             Location: Washington D.C.        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall .
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 discharge if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of governmental 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 numerous chain of command and professional counseling sessions (per his evaluation of 15 July 2006), and one nonjudicial punishment (NJP) for violation o f the Uniform Code of Military Justice (UCMJ): Article 112a ( Wrongful use of controlled substances, marijuana-65ng/ml, cocaine-385 ng/ml -- t he DoD established threshold levels levels for marijuana and cocaine are 15 ng/ml and 100 ng/ml, respectively.) After his NJP, the Applicant violated Article 86 (Absence without leave more than 30 days, apprehended after 252 days). The NDRB did not have the Applicant’s discharge package nor did he provide a copy. Therefore, the NDRB presumes the Applicant requested discharge for the good of the service to escape trial by court-martial, that his counsel had fully explained the elements of the offense(s) for which he was charged, that he was guilty of the offense(s), that he certified a complete understanding of the negative consequences of his actions and that his characterization of service would be under other than honorable conditions.

Issue 1 : (Decisional) ( ) . The Applicant contends his “less than honorable” discharge was a mistake. The Applicant should understand his separation was administrative in nature, not punitive. Although his discharge was the result of misconduct, it was not part of the punishment awarded at either a court-martial or NJP. Furthermore, as discussed above, violations of Article 92, as well as violations of Article 86 and 112a, could have resulted in punishment substantially more harsh than the discharge received. The NDRB determined the awarded characterization of discharge was warranted.

Issue 2: (Decisional) ( ) . The Applicant contends he was not properly diagnosed or treated even though he showed clear signs of psychosis after being hospitalized o n 5 June 2006 for attempted suicide . H e also contends h is use of marijuana was an attempt to self-medicate. When the Applicant was absent without leave during June 2007, his mother admitted him to the Underwood Memorial Hospital for emergency psychiatric treatment and attempted suicide. The Applicant provided letters from a Department of Veterans Affairs (VA) Medical Center, Philadelphia, psychiatrist who is treating the applicant for schizoaffective disorder with psychotic features. In the letter dated May 14, 2008, t he VA psychiatrist noted that the Applicant’s disorder “w ith a medical degree of certainty first started while he was in the military.” The psychiatrist also stated, “He has NO substance abuse history, present or past.” In the June 6, 2008, letter, the psychiatrist stated the Applicant is “presently totally disabled and unemployable due to his psychiatric diagnosis of schizoaffective disorder.” In a State of New Jersey, Division of Family Development, report dated 21 May 2009, the primary diagnosis was schizoaffe ctive disorder/post-traumatic stress disorder (PTSD). The June 2006 suicide attempt noted by the Applicant was the result of the Applicant’s breakup with his fianc é e . Per the Naval Medical Center, Portsmouth, Virginia, Department of Psychiatry letter regarding the Applicant’s psychiatric admission from 12-19 June 2006, the Applicant was admitted for evaluation of suicidal ideation in context of relationship stressors and routine military stressors, and was diagnosed with adjustment disorder with depressed mood; (V) partner relational problem, and was found fit for full duty.

The NDRB found no evidence in the Applicant’s active duty medical records to support his contention that he was not properly diagnosed, and the Applicant failed t o provide any documentation of his treatment at the Underwood Memorial Hospital for the NDRB’s consideration. The VA psychiatrist stated he had no substance abuse history, but the Applicant tested positive for marijuana and cocaine after a random urinalysis. After a careful review of the Applicant's post-service documentation and official service and medical records, and taking into consideration the facts and circumstances unique to this case, the NDRB determined the Applicant was properly diagnosed at the time of discharge and his medical condition was not a mitigating factor in his misconduct. The awarded characterization of service was warranted. For more information, t he Applicant should read the paragraph in the Addendum titled Medical Conditions and Misconduct .

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and 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. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct .

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 31 May 2005 and Present, Article 1910-106, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications .

C . 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 .



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 Disabled American 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 their 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

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