ex-ENFN, USN

Current Discharge and Applicant’s Request

Application Received:  20080515
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) 20010814 - 20040712  		Active:  

Period of Service Under Review:
Date of Enlistment:  20010814	  Period of Enlistment:   Years   Extension	  Date of Discharge:  20040712
Length of Service:   Years     Months   28 Days   Education Level:  	  Age at Enlistment:  	    AFQT:  44
Highest Rank/Rate:  ENEN	Evaluation Marks:  Performance: 1.0 (1)	Behavior:  1.0 (1)	 OTA:  1.0
Awards and Decorations (per DD 214):       

Periods of UA/CONF:   

NJPs:  
20020614:  Article 121 (Larceny)
                   Awarded:  RESTR EPD FOP  [Extracted from Report and Disposition of Offense(s) dated 20020710]

20020621:  Article 86 (Failure to go to appointed place of duty), 2 specifications:
		- Specification 1:  1800, 20020615
		- Specification 2:  0815, 20020617
		 Article 92 (Failure to obey other lawful written order)
               Awarded:  CONF     Suspended:  NONE

          20020710:  Article 86 (Failure to go to appointed place of duty), 2 specifications:
		         - Specification 1:  1600, 20020625
		         - Specification 2:  1800, 20020625
Article 92 (Failure to obey other lawful written order)
              Awarded:  .  Suspended:   

SCMs:  1
            20040505:  Article 86 (Unauthorized absence), 3 specifications:
		- Specification 1: 20031031- 20031001 (1 day)
		- Specification 2: 20031103 – 20031104 (1 day)
		- Specification 3: 20031211 – 20040431 (3 months 2 days)
	Article 87 (Missing movement), 4 specifications:
		- Specification 1: 20040114
		- Specification 2: 20040202
		- Specification 3: 20040315
		- Specification 4: 20040322
	Article 112a (Wrongful use of marijuana)
	Sentence:  RESTR   Suspended:  NONE

SPCMs: 	       CC: 

Period of Service Under Review (cont):

Retention Warnings:  
                    20020614:  For failure to conform to military rules and regulations.  Your misconduct included larceny of              
                                       personal property.
                    20020621:  For failure to conform to military rules and regulations.  Your misconduct included failure to  
                                       go to appointed place of duty and failure to obey other lawful written order.

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:		Substance Abuse:			Criminal Records:	
	Family/Personal Status:		Community Service:		References:		
              Additional Statements:
                             From Applicant:  	From Representation:         	From Congress member:    

              Other Documentation (Describe):  

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, 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.

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, Drug abuse.

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1.  Mitigating circumstances – experiencing depression caused drinking and use of drugs.
2.  Improper medical diagnosis and mental healthcare.

Decision

Date:  20081002           	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 contends her characterization should be upgraded because she was suffering from depression at the time she engaged in conduct which resulted in her discharge from the Navy.  She further contends the medical personnel aboard ship failed to adequately diagnose and treat her mental illness which caused her to go AWOL, drink and use drugs.  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 Applicant’s service was marred by two retention warnings, three NJP’s for violations of the Uniform Code of Military Justice (UCMJ):  Article 86 (Unauthorized absence); Article 92 (Failure to obey other lawful written order); Article 121 (Larceny); and one SCM conviction for violations of the UCMJ:  Article 86 (Unauthorized absence); Article 87 (Missing ship’s movement), and Article 112a (Drug abuse).   The violations are considered serious in nature and could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of sentence from a special or general court-martial.  The command did not pursue a punitive discharge but opted instead for an administrative discharge.  According to the Administrative Separation Board Procedure Notice of 05 May 2004, the Applicant was processed for separation due to misconduct based upon a pattern of misconduct and drug abuse.

In reviewing the medical records provided by the Applicant, she was seen at the medical department aboard the USS SAIPAN (LHA 2) on numerous occasions for depression and suicidal ideations.  Based on the medical documentation of 29 April 2004, the Applicant was referred to the medical department by the chaplain due to her suicidal thoughts; the medical provider indicated she was to be referred to mental health within 7 days.  Based on a review of the medical records provided by the Applicant, the Board found no indication in the record she was inequitably or improperly diagnosed and denied treatment for her mental health problems; nor did she provide documentation to support the allegations she was improperly diagnosed or treated.  The evidence of record does not demonstrate the Applicant was not responsible for her conduct or that she should not be held accountable for her actions due to a medical condition.  The medical documentation does not indicate the Applicant was mentally incapable of appreciating the wrongfulness of her conduct.  

For the edification of the Applicant, violation of Article 112a, use of illegal drugs, requires mandatory processing for separation from the service.  Separation under these conditions usually results in characterization of service as under other than honorable conditions.  A ‘General (Under Honorable Conditions)’ discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record.  A discharge ‘Under Other Than Honorable Conditions” is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the naval service.  The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her  failure to meet the requirements of her contract and falls far short of that required for an upgrade of her characterization of service.  The Board determined an upgrade would not be appropriate. 

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and  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 or is referred to a court martial 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 other medical related reasons.  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 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 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