ex-ICFN, USN

Current Discharge and Applicant’s Request
Application Received: 20100517
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:	USMCR (DEP) 19890620 - 19900319  	Active:	 	19900320 - 19940319  
	USMCR	 19940320 - 19970619  		 	19991019 - 20010927  
	USNR (DEP)	 19991007 - 19991018  

Period of Service Under Review:
Date of Current Enlistment:  20010928	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20020110	Highest Rank/Rate:  IC3
Length of Service:   Year(s)     Month(s)   13 Day(s)
Education Level:  	AFQT:  75
Evaluation Marks:	Performance:  3.0 (1)	Behavior:  2.0 (1)	OTA:  2.57 (1)

Awards and Decorations (per DD 214):	GCM

Periods of CONF:  

NJP:  

- 20011022:	Article  (UA, 5 Oct 2001)
	Article  (Failure to obey order, 8 Oct 2001)
	Awarded:    Suspended:  

- 20011213:	Article  (UA 20011101-20011212, 42 days)
	Article  (Drugs – cocaine 187 ng/ml)
	Awarded:     Suspended:  

SCM:  	SPCM:  	CC:  	

Retention Warning Counseling:  

Administrative Corrections to the Applicant’s DD 214

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

	  “99  OCT  19”
	  “02  JAN  24”
	  “06  01  25”
	  “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 991019 UNTIL 010927”
	  “UNDER OTHER THAN HONORABLE CONDITIONS”
	  “MISCONDUCT”

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 33, effective 16 July 2001 until 21 August 2002, 
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.  FY2010 National Defense Authorization Act, Section 512.

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

Applicant’s Issues

1.	Applicant contends peer pressure led him to excessive drinking and the subsequent misconduct that led to his discharge.
2.	Applicant contends he was not given access to counseling during previous USMC enlistment, which led to alcohol abuse and PTSD.
Decision

Date:  20101028      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.  Additionally, because the Applicant contends that he suffers from PTSD, the NDRB processed and adjudicated this case in accordance with Section 512 of the FY2010 National Defense Authorization Act.  The Applicant identified two decisional issues for the Board’s consideration.  The Board completed a thorough review of the circumstances that led to  discharge and the discharge process to ensure  discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included   for  of the Uniform Code of Military Justice (UCMJ): Article  (Absence without leave, UA on 5 Oct 2001 and 1 Nov-12 Dec 2001), Article  (Failure to obey order, ), and Article  (Wrongful use, possession, etc of controlled substance, positive urinalysis test result for cocaine, 187 ng/ml, as confirmed by NAVDRUGLAB memo Ser 700:02/1316 25 Oct 2001).

Based on the Article 112a violation, processing for administrative separation is mandatory.  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.  Having served enlistments in the active duty Marine Corps and the Navy and Marine Corps Reserves, the Applicant was fully aware there is a zero-tolerance policy for drug abuse, and he knew the consequences.  While he may feel his youth and immaturity were the underlying causes of his misconduct, the record clearly reflects his willful misconduct within the first three months of his fourth military enlistment 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.

:  (Decisional) ()  .  The Applicant contends peer pressure led him to excessive drinking and the subsequent misconduct, which led to his discharge.  The Applicant entered this period of enlistment in the Navy on 28 September 2001, at the age of 30, after having served three previous enlistments in the USMC, USMCR, and USN.  The Applicant was well-aware of the high standards of conduct expected of all members of the naval service, especially with his depth and breadth of experience.  While he may feel this was the underlying cause of his misconduct, the evidence of record does not demonstrate the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Though peer pressure to drink excessively may have existed during his enlistment, it does not mitigate his misconduct nor otherwise reduce his personal responsibility to uphold the Navy’s Core Values.  The Board determined this issue was without merit and did not provide a basis for which relief could be granted.

:  (Decisional) ()  .  The Applicant contends he was not given access to counseling during his previous USMC enlistment, which led to alcohol abuse and PTSD.  The Board reviewed the Applicant’s entire service record and medical record history to determine whether the Applicant was diagnosed with post-traumatic stress disorder (PTSD) or any other mental disorder during his previous active duty and reserve enlistments in the Navy and Marine Corps.  The Board could not find any documented diagnosis or analysis of PTSD within the records.  The Board did find a June 1991 mental health referral for psychological consult due to the Applicant’s participation in an alcohol-related fight off-base near Cubi Point, Republic of the Philippines.  His primary care physician had annotated the Applicant’s alcohol abuse with “aggressive impulse behavior,” as evidenced during recent fights while on liberty in Olongapo City, but stated there was no evidence of alcohol dependence.  A pre-CAAC (counseling and assistance center) exam in Sep 1991 also noted self-admitted alcohol abuse, an impulse control issue, and two significant alcohol-related fights while on liberty.  The Board reviewed the entirety of the Applicant’s medical record, which contained several medical exams and sick-call appointments to include: Nov 91 (struck in the rear shoulder/upper back with night stick during MP apprehension); May 93 (bursitis in elbow); Jun 93 (in-grown toenail); Jul 93 (snakebite to ankle, no adverse symptoms); Dec 93 (tooth removal); Feb 94 (sore knee); Dec 99 (nothing significant reported); Jul 00 (nothing significant reported); Aug 00 (nothing significant reported); and Feb 01 (nothing significant reported).  None of these exams made any reference to anxiety, depression, significant life stressors, or mental health issues nor were there any referrals for follow-up examinations.

The only reference to PTSD is two Department of Veterans Affairs (DVA) benefits letters, dated 26 and 27 Aug 2009, in which a diagnosis of PTSD had been established on 14 Jul 2009 (7.5 years post-discharge).  The letters refer to a claim by the Applicant “that his best friend had died in his arms,” a claim that could not be substantiated by the Board as there was no documentary evidence within his service records.  Additionally, the DVA letters also mentioned previous DVA mental health evaluations on 13 Jan 2009 and 17 Feb 2009 in which diagnoses of anxiety and depression were assessed, respectively.  The NDRB is not bound by VA decisions, nor do VA decisions have any bearing on the decisions of the NDRB.  Based on the lack of documented evidence of traumatic events or of diagnosed mental health disorders prior to discharge, the Board assumed regularity in the conduct of government affairs during the administrative separation of the Applicant at the time of discharge.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, medical record and administrative 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 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