Upgrade.Vet

NAVY | DRB | 2011_Navy | ND1102014

Original file (ND1102014.rtf) Auto-classification: Denied

ex-FA, USN

Current Discharge and Applicant’s Request

Application Received: 20110831

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)        20020221 - 20020310     Active:

Period of Service Under Review:
Date of Current Enlistment: 20020311     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20050601      Highest Rank/Rate: FN3
Length of Service : Y ear s M onth s 22 D a y s
Education Level:        AFQT: 39
Evaluation M arks:         Performance: 3.7 ( 3 )      Behavior: 2.7 ( 3 )        OTA: 3.22

Awards and Decorations ( per DD 214):      NMCAM, SSDR , GWOTEM , GWOTSM , NDSM

Periods of UA /C ONF :

NJP: 2

- 20050428 :      Article 112a (Wrongful use, possession, etc. of controlled substances , marijuana 73 ng/ml, NAVDRUGLAB msg 271834Z APR 05)
         Awarded: RIR FOP RESTR EPD       Suspended:

- 20050511 :      Article 86 (Absence without leave - did absent himself from his unit, without authority, on 20050505 and remained so absent until 20050509 ( 5 days) - absence terminated by surrender)
         Article 92 (Failure to obey order or regulation, wearing coveralls outside the confines of a military installation)
         Article 134 (General A rticle, break restriction)
         Awarded : RIR FOP RESTR EPD       Susp ended:

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

Administrative Corrections to the Applicant’s DD 214

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

         “ MISCONDUCT (DRUG ABUSE) ”
         “ 20050505 - 20050509 (5) ”

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 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 .

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 access to Department of Veterans Affairs (VA) benefits.
2.       The Applicant contends his drug use was an attempt to self-medicate to deal with depression and anxiety related to undiagnosed Post - Traumatic Stress Disorder (PTSD) .

Decision

Date: 20 1 2 0510            Location: Washington D.C .        R epresentation :

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

Discussion

The NDRB reviewed the Applicant’s personal statement; the Applicant stated that he was suffering from PTSD related to his combat service in the North Arabian Gulf . As such, in accordance with U.S. Code, Title 10, Section 1553 (d) (1), the NDRB i ncluded 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 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 Applicant identified one decisional issue for the NDRB’s consideration - equity related to undiagnosed PTSD while in service . 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 stan dards of equity and propriety. The Applicant’s enlistment record reflects entry into military service at age 1 8 with out waiver s to enlistment standards . The Applicant enlisted on an initial contract for 4 years as a Fireman Apprentice , completing 3 years and 2 months of that contract. The Applicant’s record of service during his current enlistment period reflects no NAVPERS 1070/613 retention-counseling warnings having being issued. However, the Applicant’s period of service documents two nonjudicial punishments for violations of the Uniform Code of Military Justice (UCMJ) : Article 86 (U nauthorized absence) , Article 92 (Failure to obey lawful order) , and Article 112(a) (Wrongful use, possession, etc., of a controlled substance - marijuana , as verified by Naval Drug L ab urinalysis - 73 ng/ml). Violation of Article 112 (a) requires mandatory processing for separation in accordance with the Navy’s Zero - Tolerance Drug Policy. W hen notified of administrative separation processing using the notification procedure, the Applicant elected to waive his rights to consult with a qualified legal counsel or to request an administrative board hearing to present his case for retention or characterization of service . The Applicant did elect to exercise his right to submit written matters for consideration by the Separation Authority . The Separation Authority reviewed the evidence of record and determined that a preponderance of the evidence supported the basis for separation , Misconduct - Drug Abuse per paragraph 1910-146 of the Naval Military Personnel Manual . As such, the Separation Authority directed the Applicant be discharged with an Under Other Than Honorable Conditions characterization of his service with a re-enlistment code of RE-4 (not rec ommended for reenlistment).

Issue 1: (Nondecisional Issue) The Applicant seeks an upgrade to facilitate access to VA benefits. There is no requirement, or law, that grants re-characterization solely on the issue of facilitating access to VA benefits. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities or employment opportunities. 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 Issue) ( ) . The Applicant contends his drug use was an attempt to self-medicate to deal with depression and anxiety related to undiagnosed PTSD. T he 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 di scipline of the Naval Service. Processing for administrative separation for illegal drug use is mandatory by service policy. The Applicant was properly notified of the proposed discharge action. The confirmed use of marijuana was willful and wrongfully use d and established a finding that a preponderance of the evidence supported a determination of misconduct. Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Naval Service in order to maintain good order and discipline. Violation of Article 112 (a) is one of those offenses. This process usually results in an unfavorable characterization of service at discharge 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 command did not pursue a punitive discharge, but opted instead for the more lenient nonjudicial punishment and administrative discharge. Based on the documentation of record, the NDRB determined that the separation was proper and that the narrative reason for separation was accurate; relief based on propriety of the discharg e action is not warranted.

T he Applicant contends his drug use was an attempt to self-medicate to deal with stresses of depression and anxiety related to undiagnosed PTSD . The NDRB requested all records of medical treatment, both active duty and post-service, from the VA. The records received from the VA failed to document any request for evaluation, any diagnosis, or any findings of PTSD or other mental health concerns. Moreover, the Applicant did not provide any evidence of a diagnosis of PTSD from any other private mental health treatment provider to document his claim. The NDRB found no evidence in the record of any indications of, or diagnosis for, PTSD . Additionally, t here is no evidence in either the Applicant’s service record, or the documentation he provided, which demonstrated any problems or symptoms manifesting during his enlistment from his service in the North Arabian Gulf . Furthermore, the Applicant’s record does not document any attempts to seek help for any stress - related symptoms while in service . 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. While he may feel that this was an underlying cause and mitigation for his misconduct, the record clearly documents willful misconduct that demonstrated that he was unfit for further service. Accordingly, relief denied.

Characterization of service at discharge is the recognition of a Sailor’s performance and conduct during a period of enlistment and is not necessarily dependent upon the narrative reason for separation. When the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under Honorable conditions. A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. However, an Under Other Than Honorable Conditions characterization of service is warranted when a service member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service. The wrongful use of a controlled substance, compounded by a continued disregard for good order and discipline (NJP - UA, failure to obey orders, and breaking restriction), did constitute acts or omission s that were a significant departure from the conduct expected of a Sailor. The NDRB determined that this misconduct was not mitigated by his support to combat operations in the North Arabian Gulf, nor his undocumented claim of PTSD , and that the narrative reason for separation and the resulting characterization of service at discharge was proper, was equitable, was warranted, and was and remains consistent with the characterization of discharge given others in similar circumstances. As such, the NDRB determined that the Applicant’s characterization of service at discharge was appropriate. Accordingly, relief is denied.

Summary : After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the NDRB determined that Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain MISCONDUCT (Drug Abuse). The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his 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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NAVY | DRB | 2011_Navy | ND1102014

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