ex-SA, USN

Current Discharge and Applicant’s Request

Application Received: 20080528
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)	19991029 - 19991122  		Active:   

Period of Service Under Review:
Date of Enlistment: 19991123	Period of Enlistment:  Years   Extension	Date of Discharge: 20000901
Length of Service:  Years     Months  13 Days	Education Level: 	Age at Enlistment: 	AFQT: 82
Highest Rank/Rate: 	SA	Evaluation Marks: Performance:	2.0 (1)	Behavior: 2.0 (1)	OTA: 2.00
Awards and Decorations (per DD 214):	

PERIOD OF UA:  20000609-20000709 (29 days)
	     20000717-20000724  (07 days)

NJP:  
- 20000731:  Article 86 (Unauthorized absence), 2 specifications:
	- Specification 1: Unauthorized absence from 20000609-20000709
	- Specification 2: Unauthorized absence from 20000717-20000724 
                    Article 112a (Wrongfully use marijuana)
                    Awarded: ORAL REPRIMAND      Suspended:  

SCM:      SPCM:      CC:      Retention Warnings:  

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):  
		- Letter from his wife
	
Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 27, effective 27 March 2000 until 
11 February 2001, 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.

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

Applicant’s Issues

1.  Should have been given a medical discharge.
2.  Chain of command failed him, presumption of regularity doesn’t apply to his case. 
3.  Post service conduct.

Decision

Date:  20081211    	Location:  Washington D.C.	Representation:  

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

Discussion

Issues 1 and 2:  ()  .  The Applicant states he was suffering from depression and he asked for help, but his chain of command failed him.  The Applicant claims he used marijuana to get out of the service.  Additionally, he claims the presumption of regularity used by the NDRB doesn’t apply in his case.  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 record of service was marred by an NJP for violations of the Uniform Code of Military Justice (UCMJ):  Article 86 (UA), 2 specifications, and Article 112a (Drug use).  The NDRB advises the Applicant certain serious offenses warrant separation from the service in order to maintain proper order and discipline.  Violation of Article 112a is one such offense requiring mandatory separation regardless of time in service or grade.  Violations of this policy result in, at a minimum, mandatory processing for an administrative separation which 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 Applicant feels he should have received a medical discharge and presents medical documentation to override the presumption the Government took the correct course of action when discharging him.  The Applicant presents copies of his medical exams dated 26 July 2000, two days after he returned from his second UA period, where he states he is depressed, and admits this condition existed prior to joining the Navy.  He desires to speak to someone in Mental Health.  Despite being on active duty for 8 months, no where in his medical records is there a request to see someone in Mental Health before the 26 July 2000 exam.  In two Reports of Medical History, one dated 8 Feb 2000 and the other 23 April 2000, he self-reports his health is EXCELLENT and makes no mention of suffering from depression or a desire to see a mental health professional on either form.  On 27 July, he is found to be medically fit to continue training in submarines, but not medically fit to transfer.  

The Applicant was evaluated again on 8 August 20000 because he “flipped out” on 7 August.  The supervising clinical psychologist finds him psychiatrically unsuitable for naval service because he cannot cope with the stress.  He recommends the Applicant be expeditiously discharged from the Navy.  The Applicant does not provide any documentary evidence or statements from witnesses to support his claim his chain of command failed to act on his request for help.

The Applicant’s service record is marred by 2 specifications of UA, one for 29 days and one for 7 days and for illegal use of marijuana.  While the Applicant may have suffered from depression and a personality disorder, he does not present evidence he was not responsible for his behavior.  In his statement, the Applicant freely admits he used marijuana in order to expedite his discharge from the Navy.  

Despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  Illegal drug use cannot be tolerated by any member of the US Navy regardless of grade or time in service.  In accordance with U. S. Navy policy, all Sailors (regardless of pay grade) are processed for administrative separation by reason of misconduct, due to drug abuse on the first offense.  The Applicant willfully failed to uphold the standards of conduct of the U. S.  Navy in order to be discharged quickly.  Despite the fact the Applicant 

was recommended for an expeditious discharge based on his personality disorder, misconduct supersedes other administrative discharges.  The Board determined the Applicant’s claim the presumption of regularity is without merit and the awarded discharge characterization was appropriate; an upgrade or change would be inappropriate

Issue 3:  (Equity)  RELIEF NOT WARRANTED.  The Applicant submits a statement from his wife in which she claims he is a changed man, attends AA meetings, is enrolled in college and will do volunteer work. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  Outstanding post-service conduct, to the extent that 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.  The key word here is “Outstanding”.  The Board is looking for actions that go beyond simply daily living.  
Documentation to help support a post service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificate (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; 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 previous in-service misconduct was an aberration and not indicative of the member’s overall character.

While the Board applauds the Applicant’s efforts and kind words from his wife, to warrant an upgrade the Applicant’s post service efforts need to be more encompassing.  The Applicant could have produced additional evidence as stated in the above paragraph with the full understanding completion of these items alone does not guarantee an upgrade.  The Board determined that the documentation provided by the Applicant did not mitigate the misconduct and the characterization of service received, “Under Other Than Honorable Conditions”, was an appropriate characterization considering the length of service and the UCMJ violations involved; based on the limited post service documentation provided an upgrade would be inappropriate.  

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 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