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NAVY | DRB | 2012_Navy | ND1200478

Original file (ND1200478.rtf) Auto-classification: Denied

ex-HR, USN

Current Discharge and Applicant’s Request

Application Received: 20111230

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to:       COMPLETION OF REQUIRED ACTIVE SERVICE

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        20031205 - 20041018     Active:

Period of Service Under Review:
Date of Current Enlistment: 20041019     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20101015      Highest Rank/Rate: HM3
Length of Service: Y ear( s ) M onth( s ) 18 D a y ( s )
Education Level:        AFQT: 38
Evaluation M arks:         Performance: 3. 4 ( 7 )      Behavior: 2. 6 ( 7 )        OTA: 3. 13

Awards and Decorations ( per DD 214):      (2) EFMFWS

Periods of UA /C ONF :

NJP :

- 20060713 :      Article (Failure to obey an order or regulation , underage drinking , 2 specifications )
         Awarded: Suspended:

SCM:

- 20101005 :      Article (Wrongful use of controlled substance, Marijuana)
         Awarded : (to E-1) Susp ended:

SPCM:             C C :      Retention Warning Counseling :

Administrative Corrections to the Applicant’s DD 214

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

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “ NATIONAL DEFENSE SERVICE MEDAL, GLOBAL WAR ON TERRORISM SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON (2), IRAQ CAMPAIGN MEDAL, COMBAT ACTION RIBBON, ENLISTED FLEET MARINE FORCE WARFARE SPECIALIST, MERITORIOUS MAST, CERTIFICATE OF COMMENDATION ”
         “ 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:                  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 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 .

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

Applicant’s Issues

1.        Applicant contends his discharge three days prior to his end of obligated service was improper/inequitable as it was based on an isolated incident in six years of service.
2.       Applicant contends the effects of Post-Traumatic Stress Disorder ( PTSD ) led to the misconduct for which he was separated.
3.       Applicant contends the narrative reason for his discharge should be C ompletion of R equired A ctive S ervice.

Decision

Date: 20 1 2 03 22             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 Applicant deployed in support of Operation Iraqi Freedom in 2006-2007.

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. T he Board did complete a thorough review of the circumstances that led to his discharge and the discharge process to ensure his discharge met the pertinent sta ndards of equity and propriety. The Applicant’s record of service did reflect for o f the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey an order or regulation , 2 specific ation s , underage drinking ) and for of the UCMJ: Article 112a ( Wrongful use, possession, etc of a controlled substance, marijuana ). The Applicant did not have a pre-service drug waiver for illegal drug use prior to entering the Navy. However, he did sign and acknowledge his complete understanding of the Navy’s Zero Tolerance Policy on Drug Abuse on 3 Dec 2003. Based on the illegal drug use offense committed by the Applicant, command administratively processed for separation , which is mandatory per the Nav al Military Personnel Manual (MILPERSMAN) . When notified of administrative separation processing using the procedure on 6 Oct 2010 , the Applicant elected to exercise his right to submit a written statement, but waived his rights to consult with a qualified counsel and request an administrative separation board . On 7 Oct 2010, the Commander, Navy Personnel Command directed that the Applicant be discharged from the Navy, no later than 15 Oct 2010, with an Under Other Than Honorable Conditions discharge due to Misconduct (Drug Abuse).

: (Decisional) ( ) . The Applicant contends his discharge three days prior to his end of obligated service was improper/inequitable as it was based on an isolated incident in six years of 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 . The Applicant signed the USN Drug Policy on 3 Dec 2003. He was fully aware there is a zero - tolerance policy for drug abuse , and he acknowledged the consequences. T he record clearly reflects his willful misconduct 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. Per the MILPERSMAN, w hen 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 Naval 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 grade, 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 the effects of PTSD led to 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. Upon review of the Applicant’s case records, t he NDRB noted a medical diagnosis with in the service and medical records (33ABC Mental Health Evaluation dated 7 Oct 2010 ) indicating he was diagnosed with PTSD while in service . Additionally, mental health documentation within the records substantiate that the Applicant was experiencing distress (re-experiencing symptoms, estrangement from family, nightmares, intrusive memories, sleep difficulty, hypervigilance, exaggerated startle response, etc.) that w as a result of specific events experienced while deployed to support combat operations i n Iraq. After careful examination of all the available evidence and consideration of the facts and circumstances specific to the Applicant’s case, the NDRB determined that his documented PTSD mitigated his misconduct and warrant ed partial relief to General (Under Honorable Conditions) . Full relief to Honorable was not granted because of the seriousness of the misconduct. Partial r elief w arranted.

The U.S. Department of Veterans Affairs (VA) has announced special access to combat veterans discharged under other than dishonorable conditions. The VA determines the eligibility for enrollment independent of the Applicant’s characterization of service as determined by the Navy. Effective 28 January 2008, combat veterans discharged from active duty on or after 28 January 2003 are eligible for combat-veteran enhanced eligibility and enrollment placement into Priority Group 6 (unless eligible for higher enrollment Priority Group placement) for five years after discharge. The Applicant, as a combat veteran, is encouraged to contact the VA for more information at or http://www.ptsd.va.gov/public/pages/help-for-veterans-with-ptsd.asp and http://www.va.gov/healthbenefits/vhbh/ . Additionally, support is available by phone at: 1-877-222-VETS (8387 ).

: (Decisional) ( ) . The Applicant contends the narrative reason for his discharge should be C ompletion of R equired A ctive S ervice. On 7 Oct 2010, the Separation Authority (Co mmander, Navy Personnel Command ) directed that the Applicant be discharged from the Navy, no later than 15 Oct 2010, with an Under Other Than Honorable Conditions discharge due to Misconduct (Drug Abuse). The Applicant was subsequently discharged from the Navy on 15 Oct 2010 as directed by the Separation Authority. Since the Applicant’s end of active obli gated service was 18 Oct 2010, he was separated prior to the end of his enlistment contract. Accordingly, the NDRB determined that the narrative reason for discharge (Misconduct - Drug Abuse) listed on the Applicant’s DD Form 214 was proper. 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 administrative separation p rocess, the Board found the discharge was proper but not equitable. Therefore, after consideration of all the available evidence, the Board found that the awarded characterization of service shall but 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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NAVY | DRB | 2012_Navy | ND1200478

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