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NAVY | DRB | 2013_Navy | ND1301833
Original file (ND1301833.rtf) Auto-classification: Denied

ex-SN, USN
Current Discharge and Applicant’s Request
Application Received: 20130913
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)        19991211 - 20000103     Active:  
         USNR (DEP)        20070922 - 20080331

Pre-Service Drug Waiver:

Period of Service Under Review:
Date of Current Enlistment: 20080401     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20110718      Highest Rank/Rate: SN
Length of Service : Y ear ( s ) M onth ( s ) 18 D a y ( s )
Education Level:        AFQT: 39
Evaluation M arks:         Performance: 3.3 ( 4 )      Behavior: 2.8 ( 4 )        OTA: 3.04

Awards and Decorations ( per DD 214):     

Time Lost (per DD 214): 2010010 1 -20100103, 3 days; 20100403-20100417, 15 days; 20110419-20110420, 2 days

NJP:     SCM:     SPCM: NFIR        C C : NFIR          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:                  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 he was suffering from depression after his brother was murdered , and his mental condition mitigates his misconduct.
2.       The Applicant contends his command did nothing to help him overcome his depression .
3.       The Applicant contends he was coerced into agreeing to an Under Other Than Honorable Conditions discharge under the threat of receiving a Dishonorable Discharge.
Decision

Date : 20 1 4 0417             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall .
Discussion
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. T he Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included 20 days of lost time as indicated on his DD Form 214. The Applicant’s record of service is incomplete, but he was discharged from the Navy on 18 July 2011 for Misconduct (Drug Abuse). The Applicant a pre-service drug waiver prior to entering the Navy. However, the Applicant was previously discharged on 3 January 2000 with an Entry Level S eparation from the Navy Delayed Entry Program for testing positive for drugs on a urinalysis. With a violation of the Navy’s zero-tolerance drug policy during his current enlistment, processing for administ rative separation is mandatory. The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board or a General Court-Martial Convening Authority review .

: (Decisional) ( ) . The Applicant contends he was suffering from depression after his brother was murdered, and his mental condition mitigates his misconduct. While the Applicant may feel that his brother’s death was a contributing factor to his misconduct, it does not mitigate his disobedience of the orders and directives that regulate good order and discipline in the Naval Service, demonstrating he was unsuitable for further service. The wrongful use of drugs in the military is a serious offense that is punishable at court-martial by up to 5 years confinement and a punitive Bad Conduct D ischarge, or Dishonorable D ischarge. The NDRB recognizes that serving in the military is challenging, however , m ost service members serve honorably and therefore earn their Honorable discharges. In fairness to those service members, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. By abusing drugs in violation of the Navy’s zero - tolerance policy, the Applicant warranted separation from the Navy Under Other Than Honorable Conditions. Relief denied.
: (Decisional) ( ) . The Applicant contends his command did nothing to help him overcome his depression. The Applicant’s medical record shows that he was evaluated on 12 January 2011 by a ship’s psychologist for suicide ideation and homicide ideation. The Applicant reported at the time that he had been drinking alcohol in excess since November 2008. The Applicant reported r ecent stress caused by the death of his brother , f eelings that he was mistreated by his command, and believing that the world was against him. The Applicant was escorted by ship’s medical personnel to Nav al Medical Center Portsmouth and was admitted to the Mental Health Unit. While in the Mental Health Unit, competent medical authority diagnosed him with Alcohol D ependence, Adjustment D isorder, and Benzodiazepine A buse. There is no evidence in the Applicant’s record, and the Applicant did not provide any evidence, to support his contention that his command did not help him or that ship’s medical personnel refused him medical care. 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 Applicant’s statements alone do not overcome the government’s presumption of regularity in this case . The NDRB determined the Applicant had access to mental health treatment, was afforded such treatment, and warranted discharge for Misconduct (Drug Abuse). R elief denied.

Issue 3: (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant contends he was coerced into agreeing to an Under Other Than Honorable Conditions discharge under the threat of receiving a Dishonorable Discharge. There is no evidence in the record, and the Applicant did not provide any evidence, that he was coerced into agreeing to an Under Other Than Honorable Conditions discharge or was denied any rights during the administrative separation process. Upon the discovery of the Applicant’s drug abuse, the Applicant’s command would have notified him of administrative separation processing for Misconduct (Drug Abuse). With their recommendation of a discharge characterization Under Other Than Honorable Conditions , the Applicant would have been afforded the rights to consult with a qualified counsel, to submit a written statement to the Separation Authority, and to appear before an administrative separation board. Although his administrative discharge package was not found in his records, the Separation Code of GKK on his DD Form 214 indicates the Applicant elected his right to appear before an administrative separation board. After a complete review of the records, the NDRB determined the Applicant received full due process and was properly and equitably discharged Under Other Than Honorable Conditions for Misconduct (Drug Abuse). 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 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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