ex-AOAR, USN

Current Discharge and Applicant’s Request

Application Received: 20100720
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)	20000330 - 20000417  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20000418	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20080616	Highest Rank/Rate:  AO3
Length of Service:   Year(s)     Month(s)   30 Day(s)
Education Level:  	AFQT:  71
Evaluation Marks:	Performance:  3.0 (5)	Behavior:  3.0 (5)	OTA:  2.82

Awards and Decorations (per DD 214):	  

Periods of UA:  

NJP:  	SCM:  		CC:  	Retention Warning Counseling:  

SPCM:  

- 20050923:	Article  (Wrongful use, possession, etc of a controlled substance - methamphetamine)
	Article 112a (Wrongful distribution of, or, with intent to distribute, etc of a controlled substance – distribution of some amount of Oxycodone (Percocet) between 20040501 and 20041130)  
	Sentence:  , , CONF for 6 months (20050923-20060222, 152 days) 

Administrative Corrections to the Applicant’s DD 214

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

	  “05SEP23-06FEB22”
	
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:	

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

Applicant’s Issues

Nondecisional Issues: The Applicant contends that she warrants relief in the fact that there was insufficient evidence to prove the most egregious charge of misconduct (Article 112(a) - Distribution) at the trial by special court-martial.

Decisional issues: The Applicant seeks an upgrade in the characterization of her service at discharge to General (Under Honorable Conditions), contending that: (1) She was and is suffering from Post-Traumatic Stress Disorder (PTSD) (non-combat related), which contributed to, and mitigates, her misconduct of record; (2) that her otherwise honorable service, outside the isolated incident of misconduct, was not considered properly.

Decision

Date:  20111104	         Location:  Washington D.C.    Representation:  

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

Discussion

In reviewing discharges, the NDRB 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.  With respect to a discharge adjudged by a court-martial case, 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.  In response to the Applicant’s clemency request, relevant and material facts stated in a court-martial proceeding are presumed, by the NDRB, to be established facts.  As such, the Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merit clemency.  

The Applicant’s record of service documents entry into military service at age 22 as an Aviation Ordnanceman on a 4-year enlistment contract (with a 12-month extension).  The Applicant’s enlistment record also reflects entry into military service with waivers to enlistment or induction standards resulting from pre-service use and criminal possession of marijuana, criminal assault, and disorderly conduct.  The Applicant acknowledged her full understanding of the Navy Policy on Illegal Drug Use as a function of her enlistment contract waiver process; additionally, she attended a 3-day drug and alcohol training program (Prevent).  The highest rank achieved by the Applicant during her enlistment was Aviation Ordnanceman Third Class.

The Applicant’s service during her enlistment reflects no NAVPERS 1070/613 retention-counseling warnings and no non-judicial punishments for violations of the Uniform Code of Military Justice (UCMJ).  However, the Applicant’s service record documents a punitive conviction and punishment as adjudged by a Special Court-Martial on 23 September 2005.  The Applicant was subject to trial by Special Court-Martial for violation of the UCMJ as follows: Article 112(a) (Wrongful use, possession, etc. of a controlled substance (methamphetamine)) and Article 112(a) (Wrongful distribution of, or, with intent to distribute, etc. a controlled substance - Percocet).  A qualified legal defense counsel represented the Applicant during her trial by Special Court-Martial.

Given the facts of the case, the trial judge awarded the Applicant a Bad Conduct Discharge, reduction in grade to E-1, and confinement for a period of 6 months.  The case was submitted for review, with assignments of error, to the U.S. Navy–Marine Corps Court of Criminal Appeals (CCA); it was reviewed and the findings were affirmed.  The Applicant appealed the findings to the United States Court of Appeals of the Armed Forces (CAAF), who subsequently affirmed the findings, but returned the case to the lower court for review of the sentence in light of having cited an outdated legal standard.  The CCA panel of three judges reviewed the case and, citing the more recent legal standard, affirmed the sentence and returned the case to the higher court.  The CAAF affirmed the final sentence and findings of the court-martial, as appealed, on 29 May 2008.  Once affirmed, the Navy and Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed on 30 May 2008, and the Applicant was discharged on 16 June 2008 with a Bad Conduct Discharge.

(Non-decisional Issue)  The Applicant contends that there was insufficient evidence to prove the most egregious charge of misconduct (Article 112(a) - Distribution) at the trial by Special Court-Martial.  The findings, and sentence, of this court-martial were reviewed on appeal and were affirmed by the United States Court of Appeals for the Armed Forces; as such, the basis for the 

charges were established and upheld through the appeal process.   In response to the Applicant’s clemency request, relevant and material facts stated in a court-martial proceeding are presumed by the NDRB to be established facts.  Non-decisional issue; no action taken.

Decisional issue:  (Clemency/Equity)  RELIEF NOT WARRANTED.  The Applicant seeks an upgrade in the characterization of her service at discharge to General (Under Honorable Conditions), contending that: (1) She was and is suffering from PTSD (non-combat related), which contributed to, and mitigates, her misconduct of record; (2) that her otherwise honorable service, outside the isolated incident of misconduct, was not considered properly.  The NDRB conducted a thorough review of the Applicant’s court-martial and Bad Conduct Discharge under the pertinent standards of equity to determine if any factors in this particular case merited clemency.

Issue 1 - The Applicant contends that her otherwise honorable service, outside the isolated incident of misconduct, was not considered properly.  The Applicant’s record of service documents approximately 5 years of service before the charges were referred to a trial by Special Court-Martial.  The misconduct of record includes the illegal use of methamphetamines as determined through a urinalysis and confirmed by the Navy Drug Screening Laboratory.  Additionally, the documented misconduct of record included providing her prescribed pain medication - Percocet  (a controlled substance pain medication) - to other service members aboard the naval installation for recreational use.  Given the Applicant’s disregard for the expected standards and conduct of a United States Sailor, the detrimental effect to the good order and discipline of the service, and the endangerment of the safety of her fellow Sailors, the command referred the charges to trial by Special Court-Martial.  The stated misconduct resulted in the Special Court-Martial awarding a punitive Bad Conduct Discharge, reduction in rank to E-1, and confinement for 6 months.  Despite a servicemember’s prior record of service, certain serious offenses, though isolated, warrant separation from the Navy to maintain proper order, discipline, and safety of the force.  The wrongful use of a controlled substance, coupled with providing controlled substances to others, is not minor misconduct and is considered a very serious offense, warranting up to 15 years confinement and a Dishonorable Discharge, if adjudged at a trial by court-martial.  The NDRB found that the evidence of record, along with the Applicant’s statement, did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded.  Given the repetitive and deliberate nature of the misconduct, the NDRB agreed unanimously that the punishment, as awarded, was equitable and that relief in the form of clemency is not warranted.  Relief denied.

Issue 2 - The Applicant contends that she was, and is, suffering from PTSD (non-combat related), which contributed to, and mitigates, her misconduct of record.  The Applicant was pending a determination of fitness for duty by the U.S. Navy Physical Evaluation Board due to a gunshot wound received while on duty (non-combat or training related).  She was diagnosed by appropriately credentialed mental health care providers as suffering from PTSD as a result of the gunshot incident.  The Applicant was diagnosed and was being treated, in service, for that diagnosis.  The NDRB reviewed the verbatim transcripts of the record of trial by court-martial and found no justification for mitigation of the court-martial findings or reasons for clemency.  While PTSD may be a contributing factor for the Applicant’s personal abuse of alcohol or drugs, it is not a justification or rational for repetitive distribution of controlled substances to others.  The NDRB found no evidence in the record that Post-Traumatic Stress prevented the Applicant from abiding by Navy rules and regulations or otherwise mitigated her repetitive and deliberate misconduct of record.  An upgrade would be inappropriate; relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, the verbatim transcript record of trial by Special Court-Martial, and the discharge process, the NDRB determined that  Therefore, the awarded characterization of service shall  BAD CONDUCT DISCHARGE 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 her discharge.  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews and Post-Service Conduct.

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 21, effective 19 December 2007 until Present, 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. 

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