ex-BMSN, USN
ND07-00002

Current Discharge and Applicant’s Request:

Application Received:  				20060926
	Characterization of Service:		UNDER OTHER THAN HONORABLE
	Reason for Discharge:			
	Discharge Authority:			MILPERSMAN 1910-146
	Duty Assignment/Command at Discharge:	USS ENTERPRISE CVN 65 AT NORFOLK, VA 

Applicant’s Request:	
	Characterization change to:		
	Narrative Reason change to: 		
	Review Requested:			
	Representation:				
	Issues (as summarized by NDRB):		1.  Depression

Decision:

By a vote of  the Characterization shall   .	
By a vote of  the Reason for Discharge shall   - .

Date of Decision:					20070823
Location of Board:				Washington D.C.
Complete Service Record:				
Complete Medical Record:			
Complete Discharge Package:			

Regarding propriety, the Board found the discharge:	
Regarding equity, the Board found the discharge:	

Discussion

Decisional Issues:

Issue 1 ():  The Applicant contends that he has suffered from major depression since childhood and the only way he knew to deal with problems was violence, alcohol and drugs.  When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline.  The NDRB generally does not consider the circumstances surrounding the Applicant’s stated condition, the implied incorrect diagnosis, nor the medical treatment given to the Applicant to be of sufficient nature to exculpate the Applicant’s misconduct.  In fact, the NDRB sees no connection between the Applicant’s misconduct and his medical condition.  

For the information of the Applicant, despite a servicemember’s prior record of service certain serious offenses warrant separation from the naval service in order to maintain proper order and discipline.  The record documents the Applicant’s in-service use of illegal drugs which forms the basis for the discharge.  Violations of UCMJ Article 112a (wrongful use of a controlled substance) carry a maximum penalty of a Dishonorable Discharge and up to 5 years of imprisonment if adjudicated by a court martial.  The Applicant waived his right to an administrative board and proper discharge authority directed the Applicant’s discharge after ensuring compliance with MILPERSMAN 1910-146.  

Regulations limit the Board’s review to a determination of propriety and equity of the discharge.  Based upon the record, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy.  An “other than honorable conditions” characterization of service is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.   In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considers the discharge proper and equitable.  

Summary of Service:

Prior Service:
Inactive: USNR (DEP)				19990208 - 19990426  
Active:   					19990427 - 20020926  HON

Period of Service Under Review:
Date of Enlistment:  				20020927
Years Contracted:  				
Date of Discharge:				20030314
Length of Service
	Active:					0 Yrs  5 Mths  15 Dys  (does not exclude lost time)
	Time Lost During This Period:		  

Education Level:  				
Age at this Enlistment:  				
AFQT:  						37
Highest Rate/Rank:				BM3

Performance Evaluation Averages (number of marks):
						Performance: 4.0 Behavior: 2.5 OTA: 3.36 (3)

Awards and Decorations (as listed on the DD Form 214):  (3) SEA SERVICE DEPLOYMENT RIBBON, (3) OVERSEAS SERVICE RIBBON, BATTLE "E" RIBBON, NATIONAL DEFENSE SERVICE MEDAL

Service Record Entries Related to Characterization of Service or Reason for Discharge

20020927:	Reenlisted this date for a term of 4 years.

20021101:	Report aboard USS Enterprise (CVN-65).
 
20030115:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 20021224, tested positive for (THC).

20030204:	NJP for violation of UCMJ:
	Article 112a: Wrongfully using marijuana on or about 20021213.
	Award:  Forfeiture of $814.00 for 2 months, restriction and extra duty for 45 days (30 days suspended for 6 months), reduction to E-3.

Elements of Discharge:  [INVOLUNTARY]

Date Notified:					20030204
Reason for Discharge				 - 
Least Favorable Characterization Authorized:	UNDER OTHER THAN HONORABLE
Date Applicant Responded to Notification:		20030216
Rights Elected at Notification:
Consult with Counsel			
Obtain Copies of Documents		
Submit Statement(s) (date)			 
Administrative Board			
Commanding Officer Recommendation (date):	OTHER THAN HONORABLE (20030220)
Separation Authority (date):	COMCRUDESGRU TWELVE (20030305)
	Reason for discharge directed:		
	Characterization directed:			OTHER THAN HONORABLE
Date Applicant Discharged:			20030314

Additional Documents Submitted by Applicant and Considered By Board

Total Number of Pages:				11
       
Related to Period of Service Under Review:
	From Service and/or Medical Record:		Other Records:	

Related to Other Period(s) of Service:
	From Service and/or Medical Record:		Other Records:	
       
Related to Post-Service Period:
	Employment:					Finances:	
	Health/Medical Records:				Substance Abuse:	
	Family/Personal Status:				Education:	
 	Community Service Efforts:			References:	
	Criminal Records:			

Other:
	Additional Statements From Applicant:		From Representative:	
        	Other Documentation (Describe)		      

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 25 January 2004, Article 1910-146 (formerly 3630620), 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.

C.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 112a (wrongful use of a controlled substance).

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe that 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.  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:  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.  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.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’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 Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board 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 subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, 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 “PTSD.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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.  Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

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 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.  

Board Membership:  The names and votes of the members of the 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