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NAVY | DRB | 2011_Navy | ND1101676
Original file (ND1101676.rtf) Auto-classification: Denied
ex-SA, USN
Current Discharge and Applicant’s Request
Application Received: 20110628
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)        19991223 - 20000109     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20000110     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20010719      Highest Rank/Rate: SN
Length of Service : Y ear M onth s 10 D a ys
Education Level:        AFQT: NFIR
Evaluation M arks:         Performance: 3.5 ( 2 )      Behavior: 2.5 ( 2 )        OTA: 3.09

Awards and Decorations ( per DD 214):      SSDR NAVY “ E” AFEM

Periods of UA /C ONF :

NJP: 2

- 20000511 :      Article 134 (General A rticle - Underage drinking)
         Awarded: RIR FOP RESTR EPD Suspended: RIR FOP

- 20010601 :      Article 112a (Wrongful use , possession, etc. of controlled substance s , M arijuana , 46 ng/ml, NAVDRUGLAB msg 141950Z MAY 01 )
         Awarded: RIR FOP RESTR EPD Suspended:

SCM: NONE SPCM: C C :

Retention Warning Counseling : 1
        
         - 200005 19 :      For underage drinking
Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative errors on the original DD Form 214:

          “ MILPERSMAN 1910-146 ”
“ MISCONDUCT ”

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), Change 33, effective 16 July 2001 until 21 August 2002, 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 . U.S. Code, Title 10, Section 1553 (d ).

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

Applicant’s Issues

 1. The Applicant seeks an upgrade to facilitate employment opportunities.
2. The Applicant contends his misconduct was an isolated incident during outstanding service, the result of an unin tentional use of marijuana , and was overly harsh .
3. The Applicant contends that his misconduct of record was the result of stress from depression and anxiety and led to self-medicating in an attempt to treat undiagnosed symptoms of Post - Traumatic Stress Disorder (PTSD).
Decision

Date: 20 1 2 0510            Location: Washington D.C .        R epresentation : NONE

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall .
Discussion
The NDRB reviewed the Applicant’s statement; the Applicant stated that he was suffering from Post - Traumatic Stress Disorder (PTSD) related to his service in the immediate response recovery team regarding the bombing of the USS COLE . As such, in accordance with U.S. Code, Title 10, Section 1553 (d) (1), the NDRB 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 ac hieve 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 discharge, if such change is warranted. In reviewing discharges, the NDRB 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 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 the standards of discipline of the Naval Service. The Applicant submitted two decisional issue s related to the equity and propriety of his discharge for the NDRB’s consideration; additionally, the NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of both equity and propriety.

The Applicant’s enlistment record reflects his initial entry into military service at age 20 , with waivers to enlistment standards due to pre-service illegal drug usage (marijuana) and a serious misdemeanor (theft) . The Applicant enlisted on an initial contract for 4 years without extensions. The Applicant was discharged after completing one year and six months of the enlistment agreement. The Applicant’s record of service reflects one NAVPERS 1070/613 retention-counseling warning being issued due to underage consumption of alcohol . Furthermore, the Applicant’s service record during his current enlistment period also documents two nonjudicial punishments for violations of the Uniform Code of Military Justice (UCMJ) : Article 134 ( General Article - underage drinking in violation of state statute) and Article 112(a) (Wrongful use, possession, etc., of a controlled substance (marijuana), 46 ng/ml as verified by Naval Drug Lab Urinalysis testing ). Based on the Article 112(a) violation, by service policy, processing for administrative separation was mandatory. The NDRB reviewed the Applicant’s discharge package to ensure the Applicant was afforded all rights, as required by the Naval Military Personnel Manual (MILPERSMAN). When notified of the administrative separation process using the board notification procedure, the Applicant elected to waive his right s to consult with a qualified legal counsel, to present his case for retention to an administrative hearing board, or to provide written matters to the Separation Authority for his consideration. The Applicant was advised - in writing - that the least favorable characterization of service he could receive was Under Other Than Honorable Conditions and that characterization was what the Commander was recommending. The Separation A uthority reviewed the chain of command’s recommendations and concurred .

Issue 1: (Nondecisional Issue) The Applicant seeks an upgrade to facilitate employment opportunities. There is no requirement, or law, that grants re-characterization solely on the issue of facilitating employment opportunities . Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities or access to VA benefits. Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge. As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.

Issue 2: (Decisional) (Propriety /Equity ) RELIEF NOT WARRANTED. The Applicant contends his misconduct was an isolated incident during outstanding service, the result of an unin tentional use of marijuana, and was overly harsh . The Applicant was found guilty at two nonjudicial punishments for violating Article 134 ( 11 May 2000 - underage drinking ) and Article 112(a) ( 01 June 2001 - wrongful use, possession, etc of a controlled substance). The basis for establishing that the Applicant had committed the drug offen se was a command urinalysis test ; the test results were confirmed by Naval Drug Lab tests as being positive for marijuana. By service policy, confirmed illegal drug use mandates processing for administrative separation. The Applicant’s service record reflects that he was advised properly on the separation recommendation by his chain of command; he was afforded the opportunity to exercise his rights and acknowledged all such in writing, to include waiving his right to present his case for retention to an administrative board of members. The Separation Authority reviewed the evidence of record and the chain of command’s recommendations and concurred with the determination that a preponderance of the evidence satisfied the requirements as outlined in Article 1910-146 (Misconduct - Drug Abuse) of the MILPERSMAN; accordingly, he directed the Applicant be discharged. At the time of discharge, the Applicant contended to his command that the drug usage was unknowing - that he had eaten a brownie that was laced with marijuana. However, the Applicant’s post-service VA treatment records document that the marijuana use was “legal marijuana” that he received from a friend to help with depression. The VA record also documented a history of gang - related activities, a history of polysubstance abuse, and addiction to methamphetamines prior to enlistment - which was not divulged at enlistment. Accordingly, the NDRB determined that the illegal drug use in - service was knowing and willful .

Despite a service member’s prior record of service, certain serious offenses, though isolated, warrant separation from the Naval Service in order to maintain good order and discipline. Violation of Article 112(a) is one such offense, requiring mandatory processing for administrative separation, regardless of grade, performance, service record, combat service, or time in service. Moreover, this action usually results in an unfavorable characterization of service at discharge or, at a maximum, a punitive discharge with the possibility of confinement, if adjudicated and awarded as part of a sentence by a special or general court-martial. The Applicant’s command did not opt to pursue a punitive discharge but instead chose the more lenient, non-punitive administrative discharge process following two nonjudicial punishments for failure to obey state laws and the identified illegal drug use. Based on the seriousness of the offenses during the Applicant’s enlistment, the chain of command recommended separation with an Under Other Than Honorable Conditions characterization of service at discharge . Having reviewed the documentation of record and the Applicant’s statements, the NDRB determined that the characterization of service at discharge was proper, was equitable, was warranted, and was and is consistent with the characterization of discharges given to others in similar circumstances. An upgrade or change would be inappropriate ; a ccordingly, relief as requested is denied.
Issue 3 : (Decisional) ( Propriety/ Equity) RELIEF NOT WARRANTED . The Applicant contends that his misconduct of record was the result of stress from depression and anxiety and led to self-medicating in an attempt to treat undiagnosed symptoms of PTSD. 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 requested the Applicant’s medical records in order to review his contention of PTSD ; the Department of Veterans Affairs (VA) provided the records as requested. The Applicant’s service record does not reflect any indications of, or consideration for, a diagnosis of PTSD while in service. However, civilian treatment records provided as part of the Applicant’s claim for compensation from the VA do document a diagnosis of PTSD . However, the diagnosis does not provide a determination of any level of disability resultant from th is condition. The Applicant contends that during his service he was suffering mental distress and that he used the drugs to aid in dealing with his anxiety and sleeplessness. The Applicant made no effort to seek any assistance from his chain of command, medical or psychiatric professionals , or any of the various service agencies available to assist with a service member coping with stress - related issues; instead , he resort ed to illegal drugs to “self-medicate.” After a careful review of the Applicant’s deployment history, coupled with his personal statement to the NDRB , the NDRB determined the Applicant’s contention of post-deployment stress and mental health problems , though diagnosed, were not of such magnitude to warrant mitigati o n of the deliberate misconduct. The service record clearly reflected willful misconduct , fraudulent enlistment, and demonstrated that he was unfit for further service. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, and the discharge process, the NDRB determined that 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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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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