ex-AOAA, USN

Current Discharge and Applicant’s Request

Application Received: 20100414
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)   20010915 - 20011114 ELS	Active:	
Inactive:    USNR (DEP)   20020808 - 20021016 COG

Period of Service Under Review:
Date of Current Enlistment:  20021017	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20060602	Highest Rank/Rate:  AOAN
Length of Service:   Years     Months   16 Days
Education Level:  	AFQT:  42
Evaluation Marks:	Performance:  NFIR	Behavior:  NFIR	OTA:  NFIR

Awards and Decorations (per DD 214):	     

Periods of CONF:  

NJP:  

- 20060510:	Article  (Absence without leave, UA, 20060303-20060502, 61 days)
	Article  (Missing movement, 20060307)
	Article 112a (2 specifications: Wrongful use, possession, etc of controlled substance, to wit: marijuana)
	Awarded:     Suspended:  

SCM:  	SPCM:  	CC:  

Retention Warning Counseling: None Found in Records

Administrative Corrections to the Applicant’s DD 214

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

	  “20060303-20060502”
	
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 11, effective 29 April 2005 until 
1 June 2008, 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.  Nondecisional Issues: The Applicant seeks an upgrade in the characterization of his service at discharge to General (Under Honorable Conditions) in order to access educational benefits to further his education and medical benefit programs to address the onset of symptoms of PTSD from the Department of Veterans Affairs (VA).  

2.  Decisional Issues: The Applicant did not identify any issues of propriety or equity related to his discharge for consideration by the NDRB.    

Decision

Date:  20110707	           	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 NDRB 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 did not identify any decisional issues related to the propriety of equity of his discharge action for the NDRB’s consideration.  However, in reviewing the Applicant’s issue, the NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety.

The Applicant’s enlistment record reflects his entry into military service with a waiver to enlistment standards for pre-service drug use (marijuana) confirmed by a positive urinalysis test result at the Military Processing Center while in the Delayed Entry Program.  He was discharged from the Delayed Entry Program with an Entry Level Separation and was allowed back into the Navy Delayed Entry Program approximately 9 months later.  The Applicant enlisted on a contract for 4 years of active duty military service.  The Applicant acknowledged his complete understanding of the Navy Policy Concerning the Illegal Use of Drugs, in writing, as a condition of his enlistment waiver process.  Additionally, the Applicant’s service record reflects that he completed a mandatory drug and alcohol awareness program upon arrival at the USS JOHN F. KENNEDY (CV-67).

The Applicant’s service record documents that he is a combat veteran, having served honorably in the North Arabian Gulf/Persian Gulf in support of Operation IRAQI FREEDOM.  The Applicant’s record of service does not reflect any NAVPERS 1070/613 retention-counseling warnings, but it does contain one nonjudicial punishment for violation of the Uniform Code of Military Justice (UCMJ): Article 86 (Absent without leave - Absented himself from his unit, without authority, and remained so absent for 61 days); Article 87 (Missing movement through neglect); and Article 112(a) (2 specifications - wrongful use, possession, etc of a controlled substance, marijuana).  Based on the Article 112(a) violation, processing for administrative separation from the service was mandatory.         

The NDRB reviewed the Applicant’s administrative separation package to ensure the Applicant was afforded all rights, as required by the Naval Military Personnel Manual (MILPERSMAN).  On 10 May 2006, the Applicant was notified - in writing - of the Command’s intent to process the Applicant for administrative separation for Misconduct (Drug Abuse) in accordance with Article 1910-146 of the MILPERSMAN and for Misconduct (Commission of a Serious Offense) in accordance with Article 1910-142.  The Applicant was advised that the least favorable characterization of his service at discharge possible was Under Other Than Honorable Conditions and that characterization was what the Command was recommending he be awarded.  When notified of administrative separation processing using the administrative board notification procedure, the Applicant waived  right to consult with a qualified legal counsel.  Additionally, the Applicant elected not to submit written matters to the Separation Authority and chose to waive his right to request a hearing before an administrative separation board.  After review by the Staff Judge Advocate, the Separation Authority determined that the evidence of record was sufficient in law and fact to support both proposed reasons for discharge.  He reviewed the chain of command’s recommendations for an Under 

Other Than Honorable Conditions characterization of service and determined that it was warranted.  On 18 May 2006, the Separation Authority directed the Applicant be discharged with an Under Other Than Honorable conditions characterization of service due to Misconduct (Drug Abuse).  The Applicant was assigned an RE-4B re-entry code (not recommended for reenlistment, in service drug abuse).    

The Applicant provided no additional documentation for the NDRB’s consideration or to rebut any presumption of regularity by the NDRB.  The Applicant’s personal statement to the NDRB included a contention that he was beginning to suffer effects of what he believed was PTSD - but he provided no supporting evidentiary documentation.  

(Nondecisional Issues) - The Applicant seeks an upgrade in the characterization of his service at discharge to General (Under Honorable Conditions) in order to access educational benefits to further his education and medical benefit programs to address the onset of symptoms of PTSD from the Department of Veterans Affairs (VA).  The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities or providing access to VA educational or medical programs.  Regulations specifically limit the NDRB’s review to a determination of the propriety and equity of a discharge.  Additionally, 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 in civilian life subsequent to leaving the service.    

(NDRB Issues) ()  .  The Applicant did not identify any issues related to the propriety or equity of his discharge for the NDRB’s consideration.  However, the NDRB conducted a thorough review of the circumstances that led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety.  

Propriety - The Applicant was processed for administrative separation in accordance with Article 1910-146 of the MILPERSMAN - Misconduct (Drug Abuse) and Article 1910-142 – Misconduct (Commission of a Serious Offense).  The Applicant was properly notified of the proposed separation processing; he acknowledged the separation process and elected his rights - in writing.  Naval Drug Lab screening results documented the presence of marijuana in the Applicant’s system; it established by a preponderance of evidence that the Applicant had violated Article 112(a) of the UCMJ.  Processing for administrative separation for illegal drug use was mandatory.  The Applicant did not contest the separation action and waived his right to defend himself at an administrative board hearing.  Based on the documentation of record, the NDRB determined that the separation was proper and the narrative reason for separation was accurate.  Relief denied.

Equity – In the Applicant’s application for a review of his discharge, he indicated a concern for receiving treatment of PTSD.  As such, the NDRB reviewed the Applicant’s discharge to determine if PTSD may have been a contributing factor for the Applicant’s misconduct of record.  The NDRB reviewed the Applicant’s service medical records; after an in-depth review, there were no indications of PTSD found in the record.  Furthermore, the Applicant did not provide any post-service documentary evidence from civilian mental health care professionals or from the VA medical system to support a diagnosis of PTSD for consideration in mitigation of the misconduct.  Without further documentary evidence of PTSD, the NDRB cannot form a basis of relief.

Despite a service member’s prior record of service, certain serious offenses, though isolated, warrant separation from the Naval Service in order to maintain good order and discipline.  Violation of Article 112(a) is one such offense, requiring mandatory processing for administrative separation, regardless of grade, combat experience, or time in service.  This action usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge with the possibility of confinement, if adjudicated and awarded as part of a sentence by a special or general court-martial.  The Applicant failed a random urinalysis test; results identified the presence of THC, indicating the illegal use of marijuana.  The Applicant was notified of his failing the urinalysis test; following the notification, the Applicant absented himself from his unit, without authority on 03 March 2006.  After 30 days of unauthorized absence, the Applicant was dropped from the unit rolls and was declared a deserter from the Armed Forces.  The Applicant surrendered himself to military authority on 02 May 2006 after 61 days of unauthorized absence.  Upon return to military custody, the Applicant was given another urinalysis test, which was positive for the presence of THC.
      
Characterization of service at discharge is the recognition of a Sailor’s performance and conduct during a period of enlistment and is not necessarily dependent upon the narrative reason for separation.  An Under Other Than Honorable Conditions characterization of service 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.  Based on the evidence of record, the NDRB determined that the Applicant willfully and deliberately violated Article 112(a), twice, and did absent himself from his unit in excess of 30 days - which is considered a serious offense, punishable by up to 1 year of confinement and a Bad Conduct Discharge, if awarded as part of a special or general court-martial.  The NDRB further determined that the Applicant’s 

conduct, which forms the primary basis for determining the character of service, reflected a significant departure from that conduct expected of a service member by one or more acts or omissions; as such, the awarded characterization was appropriate, was equitable, and was consistent with the characterization of discharge given others in similar circumstances.  Accordingly, an upgrade would be inappropriate.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service and medical record entries, and discharge process, the NDRB determined that   Therefore, the awarded characterization of service shall   and the narrative reason for separation shall remain  (DRUG ABUSE).  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 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 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