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NAVY | DRB | 2010_Navy | ND1002290
Original file (ND1002290.rtf) Auto-classification: Denied

ex-CTRSN, USN
Current Discharge and Applicant’s Request
Application Received: 20100921
Characterization of Service Received:
Narrative Reason for Discharge: DRUG REHABILITATION FAILURE
Authority for Discharge: MILPERSMAN 1910-150 DRUG ABUSE REHABILITATION FAILURE

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

Summary of Service
Prior Service:
Inactive:         US N R (DEP)        20000923 - 20010812     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20010813     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20031113      Highest Rank/Rate: CTRSN
Length of Service : Y ear ( s ) M onth ( s ) 01 D a y ( s )
Education Level:        AFQT: 65
Evaluation M arks:         Performance: 3.0 ( 2 )      Behavior: 2.0 ( 2 )        OTA: 2.33
Awards and Decorations ( per DD 214):     

Periods of UA /C ONF :

NJP :

- 20020730 :       Article (Failure to obey order or regulation), 2 specifications
         Awarded : Susp ended:

- 20030108 :       Article (General article), 2 specifications
         Specification 1: Underage drinking
         Specification 2: Disorderly conduct, drunkenness
         Awarded : Susp ended:

S CM :    SPCM:    C C :

Retention Warning Counseling :

- 20020730 :       For violation of Article 92, F ailure to obey order or regulation (2 specifications).

- 20030108 :       For violation of A rticle 134, U nderage drinking.

NDRB Documentary Review Conducted (date):        20090223
NDRB Documentary Review Docket Number:   ND08-01626
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.

Administrative Corrections to the Applicant’s DD 214

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

         “ DRUG REHABILITATION FAILURE ”
        
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:                  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), re-issued October 2002, effective 22 Aug 2002 until 25 April 2005 Article 1910-150 (formerly 3630500), SEPARATION BY REASON OF DRUG ABUSE REHABILITATION FAILURE.

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.        The Applicant contends undiagnosed schizophrenia mitigates his misconduct of record.
2.       Post-service conduct.
Decision
Date : 2011 0823             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall DRUG REHABILITATION FAILURE .

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 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. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) warnings and for o f the Uniform Code of Military Justice (UCMJ): Article ( , ) and Article ( , : Drunk and disorderly conduct and underage drinking ). The Applicant also had a positive urinalysis for marijuana submitted during in-processing for alcohol rehabilitation, which was unadjudicated. Based on the Applicant ’s failure to complete alcohol rehabilitation due to a positive urinalysis for marijuana , command administratively processed for separation. Based on the illegal drug violation, processing for administrative separation is mandatory. The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived rights to c onsult with a qualified counsel or submit a written statement. The Applicant was not entitled to an administrative board .

: (Decisional) ( ) . The Applicant contends undiagnosed schizophrenia mitigates his misconduct of record. The Applicant submitted medical documentation to support an initial diagnosis of schizophrenia in May 2004, approximately nine months after he was separated from the Navy. Documentary evidence and testimony showed the Applicant was treated for this condition until the summer of 2010. The NDRB determined the Applicant was lik ely experiencing some symptoms of schizophrenia while in the Navy , which may have affected his performance. However, the evidence does not suggest the Applicant’s condition impaired his judgment to the point that he was unable to comply with Navy rules and regulations. The NDRB found the Applicant’s marijuana usage was not a direct result of his mental condition, and he bears responsibility for his actions. Violation of Article 112a (Wrongful use, possession etc of a controlled substance) is a serious offense that normally results in an unfavorable characterization of service and possibly a general or special court-martial with associated confinement and punitive discharge. The NDRB determined the Applicant’s command was lenient in pursuing administrative separation and assigning a General (Under Honorable Conditions) characterization. Therefore, the NDRB determined no change to the characterization of service is warranted.

: (Decisional) ( ) . The Applicant requested the NDRB consider post - service conduct as a basis to gain a more thorough understanding of performance and conduct during the period of service under review . The Applicant submitted documentation regarding his post-service activities that showed he has completed a bachelor’s degree, held steady employment , and has participated in church and community service activities. The NDRB found the Applicant’s post-service conduct to be commendable. However, the NDRB determined the Applicant’s post-service conduct was insufficient to overcome the misconduct of record or to warrant a change to Honorable. Relief denied.

While neither the evidence submitted by the Applicant nor witness testimony were felt to have been sufficient to warrant the requested change in his discharge, there were indications other records and clinical notes of psychiatric and/or medical evaluation and care may exist covering the post-discharge period that might have resulted in a more favorable finding. Accordingly, it is recommended the petitioner exercise his option to apply to the Board for Correction of Naval Records (including submission of the above-mentioned additional records) for further consideration of his request.
Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain DRUG REHABILITATION FAILURE.


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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