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NAVY | DRB | 2010_Navy | ND1001856
Original file (ND1001856.rtf) Auto-classification: Denied

ex-CSSN, USN
Current Discharge and Applicant’s Request
Application Received: 20100720
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)        20020830 - 20030804     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20030805     Age at Enlistment:
Period of E nlistment : Years 29 MONTHS Extension
Date of Discharge: 20091201      Highest Rank/Rate: CS3
Length of Service : Y ear s M onth s 27 D a ys
Education Level:        AFQT: 41
Evaluation M arks:         Performance: 3.4 ( 9 )      Behavior: 3.2 ( 9 )        OTA: 3.40

Awards and Decorations ( per DD 214):      NDSM SSDR GCM GWOTSM

Periods of UA /C ONF :

NJP: 1
- 20091123 :      Article 112a (Wrongful possession and use of controlled substance, steroids)
         Awarded: RIR FOP RESTR EPD Suspended: FOP

SCM: NONE        SPCM:    C C :      Retention Warning Counseling: NONE

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error s on the original DD Form 214:
         Block 13, Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized, should read: “LETTER OF APPRECIATION, NATIONAL DEFENSE SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON, GOOD CONDUCT MEDAL , GLOBAL WAR ON TERRORISM SERVICE MEDAL ”
         “ MISCONDUCT (DRUG ABUSE) ”

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:           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:        


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

Applicant’s Issues

 1.       The Applicant seeks an upgrade so he can receive v eterans benefits .
2.       The Applicant contends his depression and suicidal thoughts were not properly treated by medical personnel.
3.       The Applicant contends his discharge is inequitable , because other service members were retained following illegal drug use because of their NEC .
 4.       The Applicant contends his record of service, as evidenced by his Good Conduct Medal and evaluation reports, warrants consideration for an upgrade to General (Under Honorable Conditions) .
5.       The Applicant contends his post-service conduct, as evidenced by his drug-free life style, college attendance , sponsorship of needy children, and character reference, warrants an upgrade to General (Under Honorable Conditions).
 6.       The Applicant contends he was never read his Miranda Rights , suggesting his admission to steroid use, for which there was little to no evidence and no positive urinalysis, is void.
7.       The Applicant contends that his discharge was inequitable , because his Commanding Officer showed no mercy . The Commanding Officer did not bother to hear the individual story of all personnel involved. Instead, non-judicial punishment proceedings were held at once for all eight individuals involved . E veryone received the same punishment and was administratively separated Under Other Than Honorable Conditions.

Decision

Date: 20 1 2 0124             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 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 did reflect one non-judicial punishment for violation of the UCMJ: Article 112a (Wrongful use or possession of a controlled substance, 1 specification). The Applicant did not require a drug waiver to enter the Navy. Based on the Article 112a violation, processing for administ rative separation is mandatory. When notified of administrative separation processing using the procedure, the Applicant rights to consult with a qualified coun sel, submit a written statement , and request an administrative board .

: (Non - decisional) The Applicant seeks an upgrade so he can receive v eterans benefits. The U.S. Department of Veterans Affairs determines eligibility for post-service benefits, not the Naval Discharge Review Board. There is no requirement, or law, that grants re-characterization solely on the issue of obtaining v eterans benefits , and this issue does not serve to provide a foundation upon which the Board can grant relief. The NDRB has no authority to upgrade a discharge for the sole purpose of making a former service member eligible to receive educational, medical, or any other v eterans benefits. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.

: (Decisional) ( ) . The Applicant contends his mental instability (depression and suicidal thoughts) was not properly treated by medical personnel , suggesting it mitigates his misconduct . The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his claim. There is no evidence in the record, nor has the Applicant produced any evidence, to support his contention that his depression and suicidal thoughts were not properly treated by medical personnel or that they led to his illegal use of controlled substances . Neither the documentation provided by the Applicant nor his statement overcome s the government’s presumption of regularity in this case. As for the Applicant ’ s suggestion that his mental instability mitigates his misconduct, w hen reviewing a discharge, the NDRB does consider the extent to which a medical problem and other issues might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline. However, the Board generally does not consider the circumstances surrounding the Applicant’s stated condition, the implied incorrect diagnosis, nor the medical treatment given to the Applicant to be of sufficient nature to exculpate the Applicant’s misconduct. Relief denied.

: (Decisional) ( ) . The Applicant contends his discharge is inequitable , because other service members were retained following illegal drug use because of their NEC. The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy. A preponderance of the evidence reviewed supports the conclusion that the Applicant illegally used a controlled substance, that separation from the Naval Service was appropriate, and that an Under Other Than Honorable Conditions discharge was warranted. Furthermore, while other members of his unit may have been charged with the same or similar offenses, each case must stand on its own merits. The Commanding Officer is allowed to consider matters for extenuation and mitigation unique to each individual. Therefore , no two cases, no matter how similar, are guaranteed to receive the same punishment. Re lief denied.

Issue 4: (Decisional) ( ) . The Applicant contends his record of service, as evidenced by his Good Conduct Medal and evaluation reports , warrants an upgrade to General (Under Honorable Conditions). Despite a service member’s prior record of service, certain serious offenses , even though isolated, require mandatory processing for separation from the Navy to maintain proper order and discipline. Violation of Article 112a of the UCMJ is such an offense. Wrongful use or possession of a controlled substance can result in an unfavorable characterization of service, or at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. The Applicant violated Article 112a of the UCMJ. However, his command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. The NDRB found the characterization of the Applicant ’ s discharge was equitable and consistent with the characterization given others in similar circumstances. Relief denied.
Issue 5: (Decisional) ( ) . The Applicant contends his post-service conduct, as evidenced by his drug-free life style, college attendance , sponsorship of needy children, and character reference, warrants an upgrade to General (Under Honorable Conditions). The NDRB is authorized to consider post-service factors in the re-characterization of a discharge. However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question. The Applicant submitted a statement and documentation along with h is DD Form 293 pertaining to h is post-service conduct and achievements. However, neither the documentation nor h is statement w as sufficient to convince the Board that his discharge should be upgraded. He could have submitted documentation as specified in the Post-Service Conduct paragraph in the Addendum , however, c ompletion 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. Relief denied.
Issue 6: (Decisional) ( ) . The Applicant contends he was never read his Miranda Rights , suggesting his admission to steroid use, for which there was little to no evidence and no positive urinalysis, is void. There is no evidence in the record, nor has the Applicant produced any evidence, to support his contention that his command discharged him improperly or that his self-admi ssion to using steroids was obtained improperly. His statement alone does not overcome the government’s presumption of regularity in this case. Further, the record of evidence clearly shows the Applicant waived his rights to trial by court-martial and an administrative separation board. If the Applicant felt he was mistakenly charged with a crime, it was his obligation to contest those charges at the time they were made. During a trial or administrative separation board, he would have had the opportunity to mount a defense against the charges. The Applicant submitted no evidence to support his contention, therefore, the NDRB must rely upon the presumption of regularity in the conduct of g overnment affairs. R elief denied.

Issue 7: (Decisional) ( ) . The Applicant contends that his discharge was inequitable , because his Commanding Officer showed no mercy . The Commanding Officer did not bother to hear the individual story of all personnel involved. Instead, non-judicial punishment proceedings were held at once for all eight individuals involved . There is no requirement that a commanding officer show mercy or listen to individual stories from personnel who violated the UCMJ. A thorough review of the record showed no impropriety or inequity in the Applicant’s NJP and separation for drug abuse. The command did show some leniency by not referring the charges to court-martial, which could have resulted in a punitive discharge and confinement. Relief denied.




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 . 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 for more information.

Pertinent Regulation/Law

 A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 29, effective 10 November 2009 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 .


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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