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NAVY | DRB | 2013_Navy | ND1301831
Original file (ND1301831.rtf) Auto-classification: Denied

ex-HN, USN
Current Discharge and Applicant’s Request
Application Received: 20130910
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)        19900608 - 199011 18     Active:            19901119 - 19961114
                                             19961115 - 19981112
                                             19981113 - 20011108
                                             20011109 - 20041212
                                             20041213 - 20061207

Pre-Service Drug Waiver:

Period of Service Under Review:
Date of Current Enlistment: 20061208     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20100903      Highest Rank/Rate: HM1
Length of Service : Y ear ( s ) M onth ( s ) 26 D a y ( s )
Education Level:        AFQT: 53
Evaluation M arks:         Performance: 3.2 ( 6 )      Behavior: 2.0 ( 7 )        OTA: 2.65

Awards and Decorations ( per DD 214):      (2) MUC (6) (2) (2) FMFWS
Periods of UA :

NJP:

- 20080729 :      Article (Wrongful use, possession, etc. of controlled substances , cocaine , 2 specifications )
         Awarded: Suspended:

- 20100513 :      Article (Wrongful use, possession, etc. of controlled substances , cocaine )
         Awarded: Susp ended:

SCM:     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:
         “ 1990 11 19 ”
         “ 19 09 15 ”
         Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “ NAVY AND MARINE CORPS ACHIEVEMENT MEDAL (2); NAVY UNIT COMMENDATION; MERITORIOUS UNIT COMMENDATION; NAVY GOOD CONDUCT MEDAL (6); NATIONAL DEFENSE SERVICE MEDAL (2); GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL; GLOBAL WAR ON TERRORISM SERVICE MEDAL; SEA SERVICE DEPLOYMENT RIBBON (2); FLEET MARINE FORCE WARFARE SPECIALIST; CERTIFICATE OF COMMENDATION; LETTER OF APPRECIATION; LETTER OF COMMENDATION (2) ”
         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 901119 UNTIL 061207 ”

The NDRB will recommend to the Commander, Navy Personnel Command, PERS- 312A, 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.        The Applicant contends her discharge notice said that she was to receive treatment if she was determined to be drug/alcohol dependent, and yet she never received this treatment, which would have been considered a treatment failure and not misconduct . She also contends she was not afforded the opportunity to attend a Transition Assistance Program (TAP) class before she was discharged.
2.       The Applicant contends her discharge notice arrived while she was hospitalized for psychiatric treatment, and she was discharged three days later.
3.       The Applicant contends members of her administrative separation board were shown evidence and inferred about her previous administrative separation board , which had determined that misconduct had not occurred .
4.       The Applicant contends she served honorably for 19 years and 10 months, but she was ashamed, like many other Sailors, to ask for help for her Post-Traumatic Stress Disorder (PTSD).

Decision

Date : 20140403             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. The Applicant ’s record shows that she deployed to Iraq in support of Operation IRAQI FREEDOM.

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 in her current enlistment included for o f the Uniform Code of Military Justice (UCMJ): Article 112a (Wrongful use, possession, etc. of controlled substances, cocaine, 3 specifications ) . The Applicant a pre-service drug waiver for using marijuana prior to entering the Navy. Based on the Article 112a violation, processing for administ rative separation is mandatory. When notified of administrative separation processing using the procedure, the Applicant rights to consult with a qualified coun sel, submit a written statement , and request an administrative board . On 17 June 2010, her administrative board voted 3-0 that the preponderance of the evidence supported that the Applicant had committed Misconduct (Drug Abuse) and recommended separation Under Honorable Conditions (General).

: (Decisional) ( ) . The Applicant contends her discharge notice said that she was to receive treatment if she was determined to be drug/alcohol dependent, and yet she never received this treatment, which would have been considered a treatment failure and not misconduct. She also contends she was not afforded the opportunity to attend a Transition Assistance Program (TAP) class before she was discharged. The purpose of drug/alcohol treatment if found to be dependent is not to rehabilitate a service member for further service but rather to provide treatment before separation. The record shows the Applicant was found guilty of the wrongful use of cocaine on three separate occasions . The record also shows that she was receiving medical care at Naval Medical Center Portsmouth where she was diagnosed with alcohol dependence and cocaine abuse. Her medical provider instructed the Applicant to abstain from alcohol and illicit drugs and attend daily abstinence-based support groups such as Alcohol ics Anonymous and Narcotics Anonymous. Additionally, not being afforded the opportunity to attend TAP class prior to discharge has no bearing on the propriety of her discharge. T he NDRB determined she was properly discharged for Misconduct (Drug Abuse). Relief denied.




: (Decisional) ( ) . The Applicant contends her discharge notice arrived while she was hospitalized for psychiatric treatment, and she was discharged three days later. The Applicant ’s command notified her of s eparation processing on 12 May 2010 , where she elected to meet with counsel, submit a statement, and appear before an administrative separation board, which met on 17 June 2010 . The Applicant was subsequently separated on 03 September 2010. The record clearly shows the Applicant was afforded all of her rights and that she exercised all of these rights, including a written appeal to her NJP finding of guilt and administrative separation board findings. The Separation Authority was fully informed of the Applicant’s mental health and substance abuse issues and considered them when approving her General discharge. The NDRB d etermined her discharge was proper. Relief denied.

: (Decisional) ( ) . The Applicant contends members of her administrative separation board were shown evidence and inferred about her previous administrative separation board, which had determined that misconduct had not occurred. The Applicant’s counsel submitted a L etter of D eficiency to the Separation Authority in regards to the Applicant’s second administrative separation board. In this letter , there is no mention of any impropriety with testimony about the Applicant’s previous administrative separation board or NJP for cocaine use. A complete review of the record of service contained no evidence of any wrongdoing by the second administrative separation board or anyone else in the discharge process. Relief denied.

: (Decisional) ( ) . The Applicant contends she served honorably for 19 years and 10 months, but she was ashamed, like many other Sailors, to ask for help for her PTSD . The Applicant received Honorable characterizations of service for her five previous enlistments from November 1990 to December 2006. Each period of enlistment is an independent obligation and characterization is determined for that specific period of time. During her sixth enlistment, she was found guilty at two separate NJPs for three specifications of the wrongful use of cocaine. She was notified of administrative separation processing in 2008, and an administrative separation board subsequently determined misconduct had not occurred and that she be retained in service. After a second NJP for cocaine use in 2010, she again exercised her rights and appeared before a second administrative separation board, which found that misconduct had occurred and recommend ed a General discharge.
The Applicant’s service record shows she was diagnosed twice for PTSD during her career, in 1995 and in 2008. The Regional Advice and Assistance Counsel, Wounded , Ill , and Injured, Naval Medical Center Portsmouth letter dated 29 July 2010 describes that the Applicant’s causal link of her alcohol and cocaine abuse to her PTSD was in contention among two differing medical professional opinions. The record clearly shows the Applicant’s second administrative separation board , command , and Separation Authority were well aware of the Applicant’s PTSD and medical professional opinions . Being a corpsman, the Applicant knew of the many counseling and treatment sources available to Sailors who suffered from PTSD. Turning to the use of an illegal substance was not an acceptable alternative. After an exhaustive review , the NDRB determined PTSD did not mitigate her misconduct, and she was leniently given a General discharge as misconduct of this nature for someone with over 19 years of service typically results in an Under Other Than Honorable Conditions characterization of service . 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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