ex-HR, USN

Current Discharge and Applicant’s Request

Application Received: 20100223
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)	20000409 - 20000419  	Active:	
20001016 - 20010710  COG
20020325 - 20020428  

Period of Service Under Review:
Date of Current Enlistment:  20020429	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20061116	Highest Rank/Rate:  HN
Length of Service:   Year(s)     Month(s)   03 Day(s)
Education Level:  	AFQT:  42
Evaluation Marks:	Performance:  3.0 (1)	Behavior:  2.0 (1)	OTA:  3.00 (1)

Awards and Decorations (per DD 214):	      (2)

NJP:  	
- 20041209:   (UA) extracted from NAVPERS 1070/604 page of Service Record and SPCM Record of Trial
Sentence: FOP RESTR EPD   Suspended: FOP (6 months)

SCM:  

SPCM:  

- 20050610:	Article  (UA) 20050113-20050120, 8 days
	Article 112a (Wrongful use, possession, etc., of controlled substance)
	Specification 1: Wrongfully use cocaine between on or about 20041123 and 20041203
	Specification 2: Wrongfully use cocaine between on or about 20050212 and 20050222
	Specification 3: Wrongfully use marijuana between on or about 20050212 and 20050222
	Sentence:  CONF 90 days (20050610-20050716, 37 days)  RIR E-1

CC:  

Retention Warning Counseling:  

- 20041215:	For illegal use of controlled substance, specifically that I tested positive twice for cocaine identified through a positive urine sample test result by Navy Drug Lab Jacksonville, FL message traffic DTG 251841Z Oct 04 and on DTG 122348Z Dec 04.    

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

	Block 8, Last Duty Assignment and Major Command, should read: “2D MARINE DIVISION, CAMP LEJEUNE NC”

Block 13, Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “PURPLE HEART MEDAL PRESIDENTIAL UNIT CITATION RIBBON NATIONAL DEFENSE SERVICE MEDAL GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL GLOBAL WAR ON TERROR SERVICE MEDAL SEA SERVICE DEPLOYMENT RIBBON (2) IRAQ CAMPAIGN MEDAL (2) COMBAT ACTION RIBBON”
	
  “05JAN13-20 (8); 05JUN10 TO 05JUL16 (37) ”

The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate.

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:		Rehabilitation/Treatment:		Criminal Records:	
	Personal Documentation:		Community Service:		References:	
	Department of VA letter:		Other Documentation:	
		Additional Statements:
	From Applicant:		From/To Representation:		From/To Congress member:	

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 12, effective 19 September 2005 until 18 December 2007, Article 5815-010, EXECUTING A DISHONORABLE OR BAD CONDUCT DISCHARGE.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications.

C.  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.	Applicant seeks upgrade to obtain VA medical benefits in order to receive TBI and PTSD evaluations.
2.	Applicant contends he suffers from the effects of PTSD, which warrants consideration for upgrade.
3.	Applicant seeks clemency based on consideration of his total service, to include two combat tours and receiving the Purple Heart Medal for wounds sustained during combat operations.

Decision

Date:  20110415		Location:  Washington D.C.	Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  .

Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.  In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant identified two decisional issues for the Board’s consideration.  The Board completed a thorough review of the circumstances that led to  punitive discharge and the discharge process to ensure  discharge met the pertinent standards of equity.  The Applicant’s record of service included  NAVPERS 1070/613 (Page 13) retention warning (15 Dec 2004) for illegal use of cocaine,   on 9 Dec 2004 for unspecified violation(s) of the Uniform Code of Military Justice (UCMJ), and  special court-martial (SPCM) for  of the UCMJ: Article 86 (Absence without leave, 13-20 Jan 2005, 7 days) and Article 112a (Wrongful use, possession, etc of controlled substance, 3 specifications: cocaine, o/o 23 Nov-3 Dec 2004; cocaine o/o 12 Feb-22 Feb 2004; and marijuana o/o 12-22 Feb 2005.  The Applicant pled and was subsequently found guilty at SPCM of all four charges on 10 Jun 2005.  Upon completion of appellate review and affirmation by the Navy and Marine Corps Court of Criminal Appeals, he was discharged from the Navy with a Bad Conduct Discharge (BCD) on 16 Nov 2006.

:  (Nondecisional) The Applicant seeks upgrade to obtain VA medical benefits in order to receive TBI and PTSD evaluations.  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.

:  (Decisional) ()  .  The Applicant contends he suffers from the effects of PTSD, which warrants consideration for upgrade.  Though not evident in any of the documentation in the service record, the Applicant may very well have been experiencing mental or emotional issues related to events that occurred during his two previous combat deployments (OIF I and OIF II).  However, there is also no evidence in the record to indicate the Applicant took any steps to obtain help from the Chaplain, a General Medical Officer, Marine Corps Family Team Building, or Family Advocacy.  The Special Court-Martial Record of Trial clearly reflects his misconduct was willful as indicated by: the commanding officer NJP for UA (December 2004); leaving his appointed place of duty for seven days to visit his sister undergoing surgery for a hyperthyroid condition (Jan 2005); and illegal use of cocaine (Nov-Dec 2004 and Feb 2005) and marijuana (Feb 2005), and demonstrated he was unfit for further service.  The evidence of record does not demonstrate the Applicant was not responsible for his conduct or he should not be held accountable for his actions.  In the SPCM record of trial, the Applicant told the judge that he consciously chose to go UA for seven days even though he knew it was wrong, and that he chose to use illegal drugs multiple times with his friends even though he knew it was wrong.  Less than six years later, in his Mar 2010 letter to the NDRB, he stated that he only used drugs to obtain a positive urinalysis to prevent being deployed to Iraq a third time and assumed he would likely receive a General (Under Honorable Conditions) discharge.  Therefore, after careful examination of all the available evidence and in consideration of the Applicant’s deployments in support of combat operations, the Board determined that the evidence did not support the Applicant’s claim and did not provide a basis for which relief could be granted.  Relief denied.

:  (Decisional) ()  .  The Applicant seeks clemency based on consideration of his total service, to include two combat tours and receiving the Purple Heart Medal for wounds sustained during combat operations.  The Applicant contends he was not a habitual drug user and only used drugs to get out of his pending third combat deployment to Iraq.  He also states the punishment was too severe for the misconduct.  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 good order and discipline; violation of Article 112a meets this standard.  The Applicant was fully aware there is a zero-tolerance policy for drug abuse, and he knew the consequences.  Though not evident in any of the documentation in the service record, the Applicant may have been experiencing mental or emotional issues related to his two previous combat deployments.  However, there is also no evidence in the record to indicate the Applicant took any steps to obtain help.  The Special Court-Martial Record of Trial clearly reflects his misconduct was willful and demonstrated he was unfit for further service.  However, after a detailed examination of the records and thorough deliberation of the facts and circumstances surrounding the Applicant’s discharge, including his two combat tours and receiving the Purple Heart Medal, the Board determined that partial relief was warranted on the basis of clemency.  Full relief was not granted due to the serious and repeated nature of the misconduct.

The U.S. Department of Veterans Affairs has announced special access to combat veterans discharged under other than dishonorable conditions.  The VA determines the eligibility for enrollment independent of the Applicant’s characterization of service as determined by the Navy.  Effective 28 January 2008, combat veterans discharged from active duty on or after 28 January 2003 are eligible for combat-veteran enhanced eligibility and enrollment placement into Priority Group 6 (unless eligible for higher enrollment Priority Group placement) for five years after discharge.  The Applicant, as a combat veteran, is encouraged to contact the VA for more information at http://www4.va.gov/healtheligibility/Library/pubs/CombatVet/CombatVet.pdf or 1-877-222-VETS (8387).  With the change in his characterization of service to Under Other Than Honorable Conditions, the Applicant should be eligible for these special VA benefits for five years after the upgrade.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries and punitive discharge process, the Board found the discharge was proper and equitable at the time of discharge.  However, based on the available evidence and the specific facts and circumstances surrounding his misconduct, the Board determined partial relief was warranted.  Therefore, the awarded characterization of service shall  UNDER OTHER THAN HONORABLE CONDITIONS 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 for additional information.

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 Disabled American 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 their 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