ex-AA, USN

Current Discharge and Applicant’s Request


Applicant’s Request: Characterization change to: HONORABLE OR GENERAL (UNDER HONORABLE CONDITIONS)
                  Narrative Reason change to: NONE REQUESTED
                  Reentry Code change to: REQUESTED, BUT NOT SPECIFIED

Summary of Service

Prior Service:
Inactive:        USNR (DEP)       20020126 - 20020204 COG         Active:  NONE

Pre-Service Drug Waiver: NO

Period of Service Under Review:
Date of Current Enlistment: 20020205    Age at Enlistment: 21
Period of Enlistment: 4 Years 12 MONTHS Extension
Date of Discharge: 20040526     Highest Rank/Rate: AN
Length of Service: 02 Year(s) 00 Month(s) 28 Day(s)
Education Level: 11     AFQT: 58
Evaluation Marks:        Performance: 3.0 (1)     Behavior: 3.0 (1)       OTA: 3.00

Awards and Decorations (per DD 214):     NDSM SSDR

NJP: NONE

SCM: 1

- 20040329:      Article 86 (Absence without leave; 20040111-20040310, 59 days)
         Article 87 (Missing movement; O/A 20040112)     
         Article 111 (Drunken or reckless operation of a vehicle; O/A 20041220.)
         Article 112a (Wrongful use, possession, etc., of controlled substances; O/A 20031220, SNM did wrongfully use marijuana)
         Sentence: CONF (20040329-20040422, 25 days) FOP RIR E-2 (Credited with 5 days for good behavior)
         [CA on 20040425 approved sentence and ordered it executed]

SPCM: NONE

CIVIL ARREST: 1

- 20031222:      Charges: DUI at Kitsap County, WA.

CC: NFIR

Retention Warning Counseling: NONE

Administrative Corrections to the Applicant’s DD 214

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

         Block 28, Narrative Reason for Separation, should read: “MISCONDUCT”
Block 29, Dates of Time Lost During This Period, should read “040111-040310 and 040329-040422”
“02 00 28”

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:                  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 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 contends that he was directed to just initial his separation paperwork and waive counsel and rehabilitation treatment and that rehabilitation would have been beneficial to treating a pre-service PTSD problem.

Decision

Date: 20150507   DOCUMENTARY REVIEW Location: Washington D.C. Representation: Nat. Assoc. of Black Veterans

By a vote of 5-0 the Characterization shall remain UNDER OTHER THAN HONORABLE CONDITIONS .
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT .

Discussion

As a result of the Applicant’s claim that a MENTAL HEALTH DIAGNOSIS impacted their discharge, and in accordance with U.S. Code, Title X, Section 1553 (e)(2), the Naval Discharge Review Board included a member who is a physician, clinical psychologist, or psychiatrist. The Applicant’s service and medical record documented marijuana dependence, pre-service PTSD, and MDD.

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 governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Board completed a thorough review of the circumstances that led to the discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included one summary court-martial (SCM) for violations of the UCMJ: Article 86 (Absence without leave), Article 87 (Missing movement), Article 111 (Drunken or reckless operation of a vehicle), and Article 112a (Wrongful use, possession, etc., of controlled substances). Based on the Article 112a violation, processing for administrative separation is mandatory. When notified of administrative separation processing using the administrative board procedure, the Applicant waived his rights to consult with a qualified counsel and request an administrative board while exercising his right to submit a written statement.

Issue 1: (Decisional) (Propriety) RELIEF NOT WARRANTED. The Applicant contends that he was directed to just initial his separation paperwork and waive counsel and rehabilitation treatment and that rehabilitation would have been beneficial to treating a pre-service PTSD problem. In the Applicant’s package, he provided three letters of reference, a North Carolina criminal records check, and a statement that he is currently a barber who employees nine rehabilitated felons and gives back to the community. The service record does document that on 20 April 2004, the Applicant elected not to be screened and treated for drug abuse. However per the Applicant’s medical record, he was referred to SARP on 04 May 2004 and scheduled for class on 26 May 2004 in San Diego. The Applicant also had a referral to Madigan Army Medical Center on 18 March 2004 for therapy and post-service follow up. The record clearly shows that the Applicant was receiving medical assistance, but it is unclear whether or not the Applicant made use of the medical care offered. The medical record also documents that on 18 March 2004, the Applicant disclosed pre-service drug abuse and drug rehabilitation that was not disclosed on his application for military service nor on his application for a security clearance. The Applicant cited daily marijuana use from age twelve and provided selling drugs as a pre-service occupation. Although the Applicant may feel that mental health issues were the underlying cause of his misconduct, the evidence of record did not show that the Applicant was not responsible for his conduct.

Certain serious offenses warrant separation from the service to maintain proper order and discipline. Violation of Article 112a is one such offense requiring mandatory processing for administrative separation regardless of 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 command retained the Applicant after the first drug use, and following the second offense, the command still did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. The NDRB recognizes that serving in the military is challenging. Most servicemembers, however, serve honorably and therefore earn their Honorable discharges. In fairness to those servicemembers who served honorably, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and service record entries and discharge process, the Board found the discharge was proper and equitable. Therefore, the awarded characterization of service shall remain UNDER OTHER THAN HONORABLE CONDITIONS; the narrative reason for separation shall remain MISCONDUCT. The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his 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: Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code. 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