Search Decisions

Decision Text

NAVY | DRB | 2013_Navy | ND1301909
Original file (ND1301909.rtf) Auto-classification: Denied

ex-SMSN, USN
Current Discharge and Applicant’s Request
Application Received: 20130925
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)        19981211 - 19990222     Active:  

Pre-Service Drug Waiver:

Period of Service Under Review:
Date of Current Enlistment: 19990223     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20021126      Highest Rank/Rate: SM3
Length of Service: Y ear s M onth s 04 D a ys
Education Level:        AFQT: 33
Evaluation M arks:         Performance: 3.7 ( 4 )      Behavior: 2.5 ( 4 )        OTA: 3.12

Awards and Decorations ( per DD 214):     

Period of UA : 20010413-20010417, 4 days. C ONF :

NJP :

- 20020702 :      Article ( Wrongful use, possession, etc. of controlled substances ; Marijuana, 23 ng/mL, as evidenced by NAVDRUGLAB msg dtg 281620Z Jun 02 )
         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:                  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 33, effective 22 August 2002 until 28 April 2005, 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 seeks an upgrade to enhance employment opportunities.
2.       The Applicant contends Post-Traumatic Stress Disorder (PTSD) mitigates his misconduct .

Decision

Date: 20 1 4 0410             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 P TSD, 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. A review of the Applicant’s records shows he was assigned to the USS DWIGHT D. EISENHOWER (CVN 69) for his entire enlistment and deployed to the Mediterranean Sea and Arabian Gulf in 2000. Although the Applicant contends he deployed on the USS THEODORE ROOSEVELT (CVN 71) after 9/11, there is no documentation of this in his records.

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 discharge and the discharge process to ensure discharge met the pertinent standards of equity and propri ety. The Applicant’s record of service included for o f the Uniform Code of Mil itary Justice (UCMJ): Article 112a ( Wrongful use, possession, etc., of controlled substances , Marijuana). Based on the Article 112a violation, processing for administrative separation is mandatory. When notified of administrative separation processing using the procedure, the Applicant exercised rights to consult with a qualified counsel and request an administrative board . By a vote of 3 to 0, the administrative board determined the preponderance of evidence prove d all acts or omissions alleged in the notification and recommended the Applicant be separated Under Other Than Honorable Conditions for Misconduct (Drug Abuse).

: (Nondecisional) The Applicant seeks an upgrade to enhance employment 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.

: (Decisional) ( ) . The Applicant contends PTSD mitigates his misconduct . The Applicant stated on his DD Form 293 that he did not know how to ask for help with PTSD that resulted from his cruise on the USS “ Roosevelt ” after 9/11. A review of the Applicant’s records shows he was assigned to the USS DWIGHT D. EISENHOWER (CVN 69) for his entire enlistment and deployed to the Mediterranean Sea and Arabian Gulf in 2000. Although the Applicant contends he deployed after 9/11, there is no documentation of this in his records. As to the PTSD claim, t he 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 NDRB requested the Applicant’s medical treatment records, but the Department of Veterans Affairs was unable to locate them. Furthermore, the NDRB did not find any reference to a medical diagnosis of PTSD in the Applicant’s service record to support his claim, and the Applicant did not provide any documentary evidence of a medical diagnosis by competent medical authorities to support his claim. Though the Applicant may feel that PTSD was the underlying cause of his misconduct, the record reflects willful misconduct that demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. The NDRB determined PTSD does not mitigate the Applicant’s misconduct. 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

Similar Decisions

  • NAVY | DRB | 2007_Navy | ND0700670

    Original file (ND0700670.rtf) Auto-classification: Denied

    ” Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the date of discharge. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for...

  • NAVY | DRB | 2007_Navy | ND0700674

    Original file (ND0700674.rtf) Auto-classification: Denied

    ” Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the date of discharge. Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. ” Only the Board for Correction of Naval Records can grant this type of...

  • NAVY | DRB | 2007_Navy | ND0700202

    Original file (ND0700202.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to:Narrative Reason change to: Applicant’s Issues:1. Discharge Process Date Notified: NOT FOUND IN RECORDReason for Discharge: PERSONALITY DISORDER Least Favorable Characterization: Date Applicant Responded to Notification:NOT FOUND IN RECORD Rights Elected at Notification: Consult with Counsel Obtain Copies of Documents Submit Statement(s) (date) Administrative Board GCMCA review Commanding Officer Recommendation (date): N/A (LOCAL...

  • NAVY | DRB | 2002_Navy | ND02-00026

    Original file (ND02-00026.rtf) Auto-classification: Denied

    (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application. PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Active: None Inactive: USNR (DEP) 890421 - 900211 COG Period of Service Under Review :Date of Enlistment: 900212 Date of Discharge: 911020 Length of Service (years, months,...

  • NAVY | DRB | 2006_Navy | ND0601039

    Original file (ND0601039.rtf) Auto-classification: Denied

    Elements of Discharge: [INVOLUNTARY] Discharge Process: Date Notified:19940815Reason for Discharge MISCONDUCT - Least Favorable Characterization: Date Applicant Responded to Notification: 19940815Rights Elected at Notification:Consult with Counsel Administrative Board Obtain Copies Submit Statement(s) (date)Recommendation of Commanding Officer (date): 19940826 Discharge directed by (date):BUPERS 19940915Narrative reason directed:Characterization directed: Date Applicant Discharged: 19940918...

  • NAVY | DRB | 2007_Navy | ND0700005

    Original file (ND0700005.rtf) Auto-classification: Denied

    After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable. Recommendation on Separation: By a Recommendation on Characterization: By a Commanding Officer Recommendation (date): Separation Authority (date):COMMANDING OFFICER, USS DWIGHT D. EISENHOWER (CVN 69) (19961004)Reason for...

  • NAVY | DRB | 2003_Navy | ND03-00632

    Original file (ND03-00632.rtf) Auto-classification: Denied

    The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. “To the Honorable Discharge Review Board; I request to have my discharge up-graded. The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.

  • NAVY | DRB | 2013_Navy | ND1301248

    Original file (ND1301248.rtf) Auto-classification: Denied

    After an exhaustive review and giving thorough consideration to the post-service clinical psychologist letter and the in-service mental health evaluations, the NDRB determined PTSD and TBI did not mitigate the Applicant’s in-service misconduct.The NDRB also determined the requirements for a medical evaluation before administrative separation as mandated by 10 U.S.C. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance...

  • NAVY | DRB | 2007_Navy | ND0701040

    Original file (ND0701040.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to:Narrative Reason change: Applicant’s Issues:1. After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and service record entries, discharge process and evidence submitted by the Applicant, the Board found that Summary of Service Prior Service: Inactive: USNR (DEP) 20010831 - 20020415 Period of Service Under Review: Date of Enlistment: 20020416Years Contracted:4; Extension: 24 monthsDate of...

  • NAVY | DRB | 2012_Navy | ND1200119

    Original file (ND1200119.rtf) Auto-classification: Denied

    The NDRB determined illegal use of marijuana, absence without leave, failure to obey orders, and willfully disobeying a superior commissioned officer were all conscious decisions and violated the tenets of honorable and faithful service.Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entriesand discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for...