ex-STG3, USN

Current Discharge and Applicant’s Request

Application Received: 20090311
Characterization of Service Received:  
Narrative Reason for Discharge: (DRUG ABUSE)
Authority for Discharge:  MILPERSMAN 

Applicant’s Request:  Characterization change to:  
		       Narrative Reason change to:  

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	20040720 - 20040815  	Active:	

Period of Service Under Review:
Date of Enlistment:  20040816	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20090107	Highest Rank/Rate:  STG2
Length of Service:   Year(s)     Month(s)   21 Day(s)
Education Level:  	AFQT:  70
Evaluation Marks:	Performance:  3.5 (4)	Behavior:  2.5 (4)	OTA:  3.08

Awards and Decorations (per DD 214):	 

Periods of UA/CONF:  

NJP:  
- 20081216:	Article 112a (Wrongfully use cocaine)
	Awarded:     Suspended:  

SCM:  	SPCM:  	CC:  	Retention Warning Counseling:  

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:  

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. Was diagnosed with bipolar disease, depression and anxiety problems which resulted in his drug abuse.
2. Was not a recreational drug user.
3. Isolated incident with 53 months of service with no other adverse action. 

Decision

Date:  20090810		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 NDRB, under its responsibility to examine the propriety and equity of a discharge, will change the reason for discharge and/or characterization of service, if such a change is warranted.  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 included one nonjudicial punishment (NJP) for violation of the Uniform Code of Military Justice:  Article 112a (Wrongful use of a controlled substance – cocaine, 476 ng/ml) (DoD cutoff is 100 ng/ml).  Per the Commanding Officer’s (Naval Station Mayport) letter of 18 December 2008, the Applicant admitted to using cocaine on several occasions to help cope with his medical issues and was under the care of a  medical physician [at the time of his drug use].  Per the Applicant’s DD Form 1966/3, Record of Military Processing, he experimented with marijuana once prior to entering the military.  Based on the drug offense committed, processing for administrative separation is mandatory.  Per the Administrative Separation Processing Notice of 16 December 2008, the Applicant was notified of Administrative Separation Processing due to Misconduct – drug abuse, as evidenced by a positive urinalysis for cocaine and waived  rights to consult with qualified counsel, submit a written statement, and request an Administrative Board.  

: (Decisional) ()  .  In seeking an upgrade in the characterization of service, the Applicant contends his drug abuse was due to his bipolar disease, depression and anxiety and that he was not a recreational drug user.  There is credible evidence in the record that the Applicant intentionally used illegal drugs while being fully aware of the Navy’s Zero Tolerance Policy.  The Applicant’s Chronological Record of Medical Care of 24 April 2008, indicates the Applicant was “diagnosed with Bipolar II Affective Disorder while on IA in Iraq.”  On 29 May 2008, the Applicant was seen at the Jacksonville Naval Hospital Mental Health Clinic for follow-up of his bipolar disorder and placed on a limited duty status.  During this appointment the Applicant denied alcohol abuse and it was determined he was not exhibiting symptoms of a thought disorder or suicidal ideation.  Additionally, the Applicant’s “psych meds” were reviewed and follow up appointments were scheduled.  After reviewing the evidence of record and additional medical records presented by the Applicant, the Board determined the Applicant’s contention that his mental condition was the precipitating factor in his drug use is without merit.  The record reflects he was under the care of mental health providers and had an opportunity to provide feedback on the ineffectiveness of his medications.  The evidence of record does not demonstrate the Applicant was mentally incompetent and unable to appreciate the wrongfulness of his actions or that he should not be held accountable for his actions.  Furthermore, the Applicant’s statement that he was not a recreational user does not mitigate the misconduct.  His self-admission to drug use is considered as “wrongful use of a controlled substance” punishable under the UCMJ, Article 112a and requires mandatory processing as previously mentioned.  Separation under these conditions usually results in characterization of service as Under Other Than Honorable Conditions 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 Board concluded an upgrade was not warranted based on the seriousness of the offense committed and the lack of mitigating circumstances

:  (Decisional) ()  .  The Applicant also contends his characterization of discharge should be upgraded because this was an isolated incident in 53 months of service without any other adverse actions.  The Board advises the Applicant that certain serious offenses, even though isolated, warrant separation from the service in order to maintain proper order and discipline.  After reviewing the evidence of record and additional information provided by the Applicant, the Board determined an upgrade was not warranted, especially in light of the Applicant’s pre-service drug use, length of service, age and his admission of frequent drug use.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and discharge process, the Board found  Therefore, the awarded characterization of service shall   and the narrative reason for separation shall remain .

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of  discharge.  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct.

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 Association of Service Disable 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 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 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:  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 BCNR can make changes to reenlistment codes.  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