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NAVY | DRB | 2010_Navy | ND1002259
Original file (ND1002259.rtf) Auto-classification: Denied

ex-HN, USN
Current Discharge and Applicant’s Request
Application Received: 20100917
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)        20020328 - 20020505     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20020506     Age at Enlistment:
Period of E nlistment : Years 16 MONTHS Extension
Date of Discharge: 20060908      Highest Rank/Rate: HM3
Length of Service: Y ear( s ) M onth( s ) 03 D a y ( s )
 Education Level:        AFQT: 80
Evaluation M arks:         Performance: 3.7 ( 7 )      Behavior: 3.2 ( 7 )        OTA: 3.56

Awards and Decorations ( per DD 214):     

Periods of UA /C ONF :

NJP :

- 20060626 :      Article (Wrongful use of a controlled substance, THC , o/o 20060502 )
         Awarded: (to E-3) Suspended:

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:           Rehabilitation/Treatment:                  Criminal Records:       
         Personal Documentation :           Community Service:                References:     
         Department of VA letter:                  Oth er Documentation:    
                  Additional Statements :
         From Applicant:            From /To Representation:            From /To Congress m ember :        

Pertinent Regulation/Law

 A . The Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 29 April 2005 until
1 June 2008, 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.        Applicant contends his discharge was inequitable , because it was based on an isolated incident in 48 months of service.
2.       Applicant contends his discharge was improper as PTSD was not considered as a mitigating factor in the misconduct for which he was separated.
3.       The Applicant contends that his drug use was off base and off duty and did not affect his ability to perform his job.
4.       The Applicant contends that the VA now allows medical marijuana for the treatment of PTSD.
Decision

Date: 20 1 2 0308             Location: Washington D.C .        R epresentation :

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

Discussion

 As a result of the Applicant’s claims of PTSD, i n accordance with U.S. Code, Title X, Section 1553 (d)(1), the Naval Discharge Review Board included a member who is a physician, clinical psychologist, or psychiatrist. In accordance with section 1553 (d)(2), the service secretary expedited a final decision and accorded the case sufficient priority to achieve an expedited resolution.
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. T he Board complete d a thorough review of the circumstances that led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety. The Applicant’s record of service did reflect for o f the Uniform Code of Military Justice (UCMJ): Article 112a ( Wrongful use, possession, etc of a controlled substance, marijuana 28 ng/ml, as evidenced by NAVGRUGLAB msg 172030Z May 06 ) . The Applicant did not have a pre-service drug waiver for illegal drug use prior to entering the Navy. Based on the offense committed by the Applicant, his command administratively processed him for separation , which is mandatory per the Nav al Military Personnel Manual (MILPERSMAN) . When notified of administrative separation processing using the procedure on 2 Aug 2006 , the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative separation board . On 29 Aug 2006, the Commander, Navy Personnel Command directed that the Applicant be separated from the Navy with an Under Other Than Honorable Conditions discharge due to Misconduct (Drug Abuse). The Applicant was subsequently discharged on 8 Sep 2006.

: (Decisional) ( ) . The Applicant contends his discharge was inequitable , because it was based on an isolated incident in 48 months of outstanding service. Despite a service member’s prior record of se rvice, certain serious offenses, even though isolate d, warrant separation from the N aval S er vice in order to maintain good order and discipline ; violation of Article 112a meets this standard . During his enlistment accession processing, the Applicant was fully aware there is a zero - tolerance policy for drug abuse , and he acknowledged the consequences. While he may feel that personal stress and PTSD w ere the underlying cause s of his misconduct, the record clearly reflects his misconduct was willful and demonstrated he was unfit for further service. The evidence of record does not demonstrate the Applicant was not responsible for his conduct or he should not be held accountable for his actions. When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under H onorable conditions. An Under Other Than Honorable Conditions discharge is warranted when a Sailor commits or omits an act that constitutes a significant departure from the conduct expected from a member of the N aval Service. The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of conduct expected of all Sailors, especially considering his rank, experience and length of service, and f alls short of w hat is required for an upgrade in the characterization of service. Relief denied.



: (Decisional) ( ) . The Applicant contends his discharge was improper as PTSD was not considered as a mitigating factor in the misconduct for which he was separated. 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 issue. The NDRB found no medical diagnosis in the record to support the Applicant ’ s claim nor did the Applicant produce any medical diagnosis by competent medical authority to support his claim. Further, although he may feel that this was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions . The Applicant’s record of service contained illegal drug use (UCMJ Art 112a) . A v iolation of Article 112a is considered a serious offense and is punishable by a B ad C onduct or D ishonorable D ischarge and up to two years imprisonment if awarded at trial by courts-martial. After careful examination of and deliberation on the available evidence, the Board determined that the Applicant’s discharge was proper and equitable, and in accordance with the applicable orders and directives in effect at the time of his separation. Relief denied .
Issue 3: (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant contends that his drug use was off base and off duty and did not affect his ability to perform his job. Regardless of the circumstances surrounding the illegal drug use, the Navy has a zero-tolerance policy for the use of illegal drugs. No matter where or when the illegal drug use occur red , it is a violation of UCMJ Article 112a and requires mandatory separation. Relief denied.

Issue 4: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends that the VA now allows medical marijuana for the treatment of PTSD. Whether or not the VA allows medical marijuana for the treatment of PTSD does not change the Navy’s zero-tolerance policy for illegal drug use and mandatory separation for violation of UCMJ Article 112a. Numerous resources are available for Sailors who experience personal stressors, to include chaplains, medical or mental health professionals, Family Advocacy, Navy Relief Society, or even the Red Cross. There is no evidence, nor did the Applicant provide any evidence, that he attempted to use one of these resources to deal with his personal stressors. Using illegal drugs i s not an appropriate option. 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 additional information.


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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