ex-AOAA, USN

Current Discharge and Applicant’s Request

Application Received: 20110628
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)	20051017 - 20060814  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20060815	Age at Enlistment:  
Period of Enlistment:  4 Years   Extension
Date of Discharge:  20090701	Highest Rank/Rate:  AOAN
Length of Service:   Year(s)     Month(s)   17 Day(s)
Education Level:  	AFQT:  59
Evaluation Marks:	Performance:  3.2 (5)	Behavior:  2.8 (5)	OTA:  3.13

Awards and Decorations (per DD 214):	    

Periods of UA/CONF:  

NJP:  

- 20071121:	Article  (Failure to obey order or regulation)  [Extracted from Evaluation Report and Counseling Record dated 20080402.]
	Awarded: NFIR  Suspended:  NFIR

- 20090501:	Article  (Wrongful use, possession, etc of a controlled substance – self-admitted Ecstasy, cocaine, and marijuana)
	Awarded:     Suspended:  

SCM:  	SPCM:  	CC:  

Retention Warning Counseling:  NFIR

Administrative Corrections to the Applicant’s DD 214

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

	  “MISCONDUCT (DRUG ABUSE)”

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 23, effective 2 June 2008 until 9 November 2009, 
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.  U.S. Code, Title X, Section 1553 (d)(1) and (d)(2).  

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

Applicant’s Issues

Nondecisional Issues: The Applicant seeks an upgrade in the characterization of his discharge in order to facilitate Department of Veterans Affairs (VA) benefits eligibility.  

Decisional issues: The Applicant contends that his characterization of service at discharge was inequitable, that his misconduct of record was the result of undiagnosed Post-Traumatic Stress Disorder (PTSD).  Furthermore, the Applicant contends that his discharge characterization of service was improper.  As a self-referral for drug and alcohol treatment, the least favorable characterization of service is limited to General (Under Honorable Conditions).

Decision

Date:  20111019		Location:  Washington D.C.	Representation:  

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

Discussion

In accordance with U.S. Code, Title X, Section 1553 (d)(1), the Naval Discharge Review Board included a member who is a physician, clinical psychologist, or psychiatrist.  In accordance with section 1553 (d)(2), the service secretary expedited a final decision and accorded the case sufficient priority to achieve an expedited resolution.

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 identified two decisional issues for the NDRB’s consideration.  Additionally, 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 entered active duty military service at age 18 on a four-year enlistment contract without waiver to enlistment conditions or standards.  The Applicant’s service record documents an approximately 14-month contingency deployment as an individual augment to Guantanamo Bay, Cuba as a detainee handler and a 6-month deployment with an aircraft carrier.  The Applicant completed 2 years and 10 months of his four-year enlistment contract prior to discharge for Misconduct (Drug Abuse).  The Applicant’s record of service documents two nonjudicial proceedings for violations of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey an order or regulation) and Article 112(a) (Wrongful use, possession, etc of controlled substances).  The Applicant’s official service record reflects signed documentation attesting to fully understanding the U.S. Navy Drug and Alcohol Abuse Policy on 17 October 2005.  Violation of Article 112 (a) requires mandatory processing for separation in accordance with the Navy’s Zero-Tolerance Drug Policy.  The NDRB reviewed the Applicant’s administrative separation package: When notified of administrative separation processing using the  notification procedure, the Applicant elected to waive his rights to consult with a qualified legal counsel, to submit written matters to the Separation Authority, and to request an administrative board hearing be held to present his case for retention or characterization of service.  The Separation Authority reviewed the evidence of record and determined that a preponderance of the evidence supported the basis for separation: Misconduct - Drug Abuse per paragraph 1910-146 of the Naval Military Personnel Manual.  As such, the Separation Authority directed the Applicant be discharged from the Naval Service and that his current period of enlistment reflect an Under Other Than Honorable Conditions characterization of service with a re-enlistment code of RE-4 (not recommended for reenlistment).

(Nondecisional Issue)  The Applicant seeks an upgrade in the characterization of his discharge in order to facilitate VA benefits eligibility.  There is no requirement, or law, that grants re-characterization solely on the issue of facilitating VA benefits or employment eligibility opportunities; as such, the NDRB has no authority to upgrade a discharge solely for this purpose and cannot form a basis of relief to act.

(Decisional Issue) ()  .  The Applicant contends that his characterization of service at discharge was inequitable, that his misconduct of record was the result of undiagnosed PTSD.  Furthermore, the Applicant contends that his discharge characterization of service was improper.  As a self-referral for drug and alcohol treatment, the least favorable characterization of service is limited to General (Under Honorable Conditions).

Propriety - The Applicant’s service record and medical record document that he was apprehended by a joint task force of San Diego Police Department and Federal Law Enforcement agencies following a drug raid on a Rave party.  The Applicant was then turned over to the Naval Criminal Investigative Service who further processed the Applicant and returned him to his assigned command (25 April 2009).  The Applicant was identified as positive for the illegal use of Ecstasy (MDMA).  Following return to his command, the Applicant self-referred himself to the command drug and alcohol representative, seeking assistance with a drug problem.  In accordance with OPNAVINST 5350.4D (Enclosure 1), self-referral does not attach when there is credible evidence of a member’s involvement in a drug or alcohol related incident prior to referral.  As such, the Applicant was not considered a “self-referral” regarding characterization of service determination.  Furthermore, processing for separation remains a mandatory requirement, regardless of a “self-referral” status.  The Applicant’s extensive use of MDMA and cocaine are documented in his service and medical records as well as the subsequent clinical diagnosis of “Poly-Substance Abuse - Dependant.”  Processing for administrative separation for illegal drug use is mandatory by service policy.  The Applicant was properly notified of the proposed discharge action to include the fact that the least favorable characterization of service warranted was Under Other Than Honorable Conditions and that was what the command was recommending he receive.  The Applicant’s self-admitted use of Ecstasy, cocaine, and marijuana – all controlled substances that were knowingly and wrongfully used – did establish a finding that a preponderance of the evidence supported a determination of misconduct.  The Applicant’s own contention in his treatment record indicates he was “chasing the high” and was usually intoxicated 3 days a week and recovering the other 3 days of the week with increased amounts of drugs required to achieve the same affect.  Despite a servicemember’s prior record of service, certain serious offenses warrant separation from the Naval Service in order to maintain good order and discipline.  Violation of Article 112 (a) is one of those offenses.  This process usually results in an unfavorable characterization of service at discharge 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 command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge.  Based on the documentation of record, the NDRB determined that the separation was proper and that the narrative reason for separation was accurate.  Relief denied.

Equity - The Applicant contends that the Under Other Than Honorable Conditions characterization was inequitable in that his misconduct of record was mitigated by symptoms from undiagnosed PTSD.  The Applicant deployed as an individual augment in support of Operation ENDURING FREEDOM as a detainee handler with Joint Task Force Guantanamo Bay.  While attending a 30-day inpatient drug and alcohol treatment program for his drug dependence as part of his separation processing, the Applicant was diagnosed with PTSD.  There is no evidence in either the Applicant’s service record or his medical record of any problems or symptoms manifesting from his service in support of OEF.  The Applicant’s record does not document any attempts to seek help for any stress-related symptoms while in service; it document s only that he was angered over being deployed after returning from his 14-month IA billet deployment - the records of service documents this as his stated basis for turning to illegal drugs.  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 his chronic and extensive misconduct of record.  Relief denied.

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.  When the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under Honorable conditions.  However, an Under Other Than Honorable Conditions characterization of service is warranted when a service 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.  The Applicant’s willful, knowing, and extensive use of Ecstasy, cocaine, and marijuana (in violation of the UCMJ and the U.S. Navy Policy on Illegal Drugs) were acts that constituted a significant departure from the conduct expected of a Sailor.  The NDRB determined that this misconduct was not mitigated by his service nor his PTSD diagnosis and that the narrative reason for separation and characterization of service were proper, equitable, warranted, and consistent with the characterization of discharge given others in similar circumstances.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and discharge process, the NDRB determined that   Therefore, the awarded characterization of service shall   and the narrative reason for separation shall remain MISCONDUCT (DRUG ABUSE).  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his 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