ex-ETSA, USN

Current Discharge and Applicant’s Request

Application Received:  20080213
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: USNR (DEP) 20040106 - 20040628  		Active:  
Period of Service Under Review:
Date of Enlistment:  20040629	  Period of Enlistment:   Years   Extension	Date of Discharge:  20060804
Length of Service:    Years    Months  06  Days	Education Level:     Age at Enlistment:  AFQT:  59   Highest Rank/Rate:  ETSN  Evaluation marks:  Performance: NFIR  Behavior: NFIR  OTA:  NFIR
Periods of UA/CONF:  

NJPs:  
	20060714:  Article 112a (Wrongful use of a controlled substance).  
                                 Awarded:    .  

Retention Warnings:  
	20060705:  For Deficiencies or misconduct.

Types of Documents Submitted/reviewed

Related to Military Service:	DD 214:  	Service and/or Medical Record:  		Other Records:  

Related to Post-Service Period:	
	Employment:			Finances:			Education/Training:	
	Health/Medical Records:		Substance Abuse:			Criminal Records:	
	Family/Personal Status:		Community Service:		References:		
	
Additional Statements From Applicant:  		From Representation:  		From Member of Congress:  
Other Documentation (Describe):   
-	DD Form 149 
-	Letters to Board for Corrections of Naval Records  

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 29 April 2005 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.  Seeking to have Re-code changed to RE-1 or a more favorable code.
2.  Seeking record changed to allow him to wear the submarine warfare pin.
3.  Separation unjust.

Decision

Date:  20080919		Location:  Washington D.C	 Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  MISCONDUCT (DRUG ABUSE).

Discussion

:  The Applicant is requesting a change in his RE-Code to favorable and a change in his record allowing him to wear the submarine warfare pin.   either  which the Board cannot form the basis of relief for the Applicant, or  the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum, for additional information regarding s and Additional Reviews.

:  ()  .  The Applicant is requesting an upgrade to the characterization of his discharge contending his separation was very unjust.  The Applicant alleges abuse by his chain of command and coercion from NCIS agents forced him to admit to wrongdoing.   In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The NDRB advises the Applicant despite a service member’s prior record of service certain serious offenses warrant separation from the Navy in order to maintain proper order and discipline.  

The Applicant's misconduct is documented in his service record which is marred by the finding at a nonjudicial punishment (NJP) proceeding on 14 July 2006 for a violation of the Uniform Code of Military Justice (UCMJ), Article 112a (Wrongful use of a controlled substance).  During the NJP proceedings the Applicant admitted to huffing “Duster”, a computer keyboard cleaner.  Additionally, on 6 July 2006 he also made a statement to NCIS agents that while on leave, on or about 18 June 2006, he used marijuana.  In accordance with Navy policy the Applicant’s self-admission to drug use is considered as “wrongful use of a controlled substance”, punishable under the UCMJ, Article 112a.  There is no evidence in the record, nor presented by the Applicant to substantiate his allegations of abuse by his chain of command or being coerced by the NCIS to admit to wrong doing.   However, based on a review of the Applicant medical record, he had mental and emotional issues which required him to undergo psychological evaluations for homicidal and suicidal ideations.  The Applicant was prescribed numerous prescription medications by military doctors (Lisinopril, Citalopram Hydrobromide, Fluoxetine, and Cyclobenzaphine HCL).  However, there was no evidence contained in the available psychological evaluations that indicated the Applicant was not responsible for his actions or the comments made to the NCIS agents.  

Notwithstanding the evidence supporting the basis for discharge due to drug abuse, the Board did consider his mental state, numerous psychological consults and treatment (including hospitalizations) as mitigating factors in the characterization of service.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB voted unanimously to change the character of the discharge and award a “General (Under Honorable Conditions)”.  However, the narrative reason for discharge shall not change.  

After a thorough review of the available evidence, to include the Applicant’s Summary of Service,   Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found 

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 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:  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  20374-50