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NAVY | DRB | 2012_Navy | ND1201322
Original file (ND1201322.rtf) Auto-classification: Denied

ex-CSSA, USN
Current Discharge and Applicant’s Request
Application Received: 20120530
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)        20100510 - 20100712     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20100713     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20120209      Highest Rank/Rate: CSSN
Length of Service: Year(s) Month(s) 28 D ay(s)
 Education Level:        AFQT: NFIR
Evaluation M arks:         Performance: 3.3 ( 3 )      Behavior: 1.7 ( 3 )        OTA: 2.88

Awards and Decorations ( per DD 214):      Pistol

Periods of UA /C ONF :

NJP :

- 20110126 :      Article (Failure to obey order or regulation) [Extracted from CO’s letter dated 20120105]
         Article (Wrongful use, possession of controlled substance , D-Amphetamine and D-Methamphetamine )
         Awarded: 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:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

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.       The Applicant wants her discharge upgraded so she can be eligible to receive Veterans benefits.
2.       The Applicant contends her discharge was inequitable due to the military s exual a ssault that resulted in her being diagnosed with P ost-Traumatic Stress Disorder (PTSD) . The Applicant further contends that after her sexual assault and diagnosis of PTSD, she was only provided therapy for a couple of weeks before she was sent underway, after which the therapy ceased and did not resume until after the command began processing her for separation.
3.       The Applicant contends her discharge was inequitable , because she never used any type of illegal drugs , and the cir cumstances surrounding the drug test should have been investigated or confirmed by an independent test.
 4 .       The Applicant wants the N arrative R eason for S eparation of “Drug Abuse” removed from her DD Form 214.
 5 .       The Applicant states that she never got into any trouble and received several awards for her achievements while in the Navy.

Decision

Date: 20 1 2 1128             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 claim of PTSD, in 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. Her records reveal that she did not deploy in support of a contingency operation during her active-duty service.

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. The Applicant’s record of service did include o ne non-judicial punishment for violations of the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey order or regulation, 1 specification) and Article 112a ( Wrongful use of controlled substance , D-Amphetamine and D-Methamphetamine ) . The Applicant did not require a pre-service drug waiver for using illicit substances prior to entering the Navy. Based on the offenses committed by the Applicant, command administratively processed for separation. Based on the Article 112a violation, processing for administrative separation is mandatory . The NDRB did not have the Applicant’s administrative separation package to determine whether the Applicant waived rights to co nsult with a qualified counsel and submit a written statement . T he Separation Code on her DD Form 214 indicates she waived her right to an administrative board.

: (Nondecisional) The Applicant wants her discharge upgraded so she can be eligible to receive Veterans benefits. There is no requirement, or law, that grants re-characterization solely on the issue of facilitating access to benefits offered by the U.S. Department of Veterans Affairs (VA) . Therefore, this issue does not serve to provide a foundation upon which the NDRB can grant relief. Regulations limit the NDRB’s review to a determination of the propriety and the equity of a discharge.

Issue 2: (Decisional) ( ) . The Applicant contends her discharge was inequitable due to the military sexual assault that resulted in her being diagnosed with PTSD . The Applicant further contends that after her sexual assault and diagnosis of PTSD, she was only provided therapy for a couple of weeks before she was sent underway, after which the therapy ceased and did not resume until after the command began processing her for separation. The NDRB tried repeatedly to obtain her complete in-service medical records but was only successful in obtaining partial records. The diagnosis or treatment of PTSD was not in the partial medical records obtained by the NDRB, but the Applicant did provide medical documentation that stated she was diagnosed with PTSD. While the NDRB does not dispute her claim, the documentation she provided g ave no indication that her traumatic experience exculpates any misconduct or that she wa s not responsible for her actions. Also, there is no indication that interrupting her therapy to get underway was against any medical

advice or was improper. The Board presumed t hat after being diagnosed with PTSD, a qualified medical officer found the Applicant fit to perform her duties in port and while underway. The fact that the Applicant received a Navy and Marine Corps Ac h i e vement Medal for her actions while underway lends some support to this pre sumption. The NDRB also presumed regularity in that a qualified medical officer ensured adequate resources were available and that the Applicant had access to those resources if necessary. The Applicant ’s statement s alone do not overcome the government’s presumption of regularity in this case . After a complete review of the records, the NDRB determined her PTSD did not mitigate her misconduct, and relief based on this issue was not warranted. Relief denied.
: (Decisional) ( ) . The Applicant contends her discharge was inequitable , because she never used any type of illegal drugs , and the circumstances surrounding the drug test should have been investigated or confirmed by an independent test. The Applicant’s service records reveal that she tested positive for D-Amphetamine and D-Methamphetamine as the result of a positive urinalysis obtained via random drug testing onboard her ship. On 26 December 2011 at NJP (Captain’s Mast), her commanding officer found her guilty of violation of UCMJ Article 112a (Wrongful use, possession, etc. of a controlled substance) and Article 92 (Failure to obey an order or regulation) as a result of this positive urinalysis. To be found guilty at NJP, the commanding officer only had to believe by a preponderance of the evidence that the Applicant committed the offenses. The positive urinalysis provided this preponderance of the evidence. There is no requirement to re-test or independently verify the accuracy of the urinalysis. The Navy Drug Screening Laboratory (NDSL) goes through a very thorough four-level analysis procedure, which includes immunoassay and gas chromatography/mass spectrometry testing, to accurately test all specimens, ensuring each positive sample is screened, re-screened, confirmed, and all procedures have been followed before a message is released. All three tests (screen, re-screen, and confirmation) must be positive before a positive result is reported to the command. After carefully reviewing the Applicant’s statement, the NDRB determined it was not sufficient to prove her urinalysis results were false. Based on the NDSL message, the NDRB determined the Applicant’s urinalysis was not a false positive. The NDRB concluded th at relief based on this issue was not warranted. Relief denied.

Issue 4 : (Decisional) ( ) . The Applicant wants the N arrative R eason for S eparation of “Drug Abuse” removed from her DD Form 214 . According to Navy regulation, processing for administrative separation is mandatory for a positive urinalysis that was tested and confirmed positive at a Navy Drug Screening Lab or other Department of Defense approved lab. If the commanding officer determines the urinalysis was conducted properly and without administrative errors and the use was wrongful , then the member shall be processed for administrative separation . B ase d on being found guilty of violating UCMJ Article 112a at NJP, t he NDRB determined the a ssigned Narrative Reason for Separation was proper and no other Narrative Reason for Separation more accurately describes why the Applicant was discharged. Relief denied.

Issue 5 : (Decisional) ( ) . The Applicant states that she never got into any trouble and received several awards for her achievements while in the Navy . Despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Nav y to maintain proper order and discipline. Violation of Article 112a is one such offense requiring mandatory processing for administrative separation regardless of performance, grade, or time in service. This usually results in an unfavorable characterization of 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 Applicant was found guilty of violatin g Article 112a of the UCMJ. However, her command did not pursue a punitive discharge but opted instead for the more lenient administrative dischar ge. T he NDRB determined that relief based on this issue was not warranted. R elief 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), 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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