ex-AO3, USN

Current Discharge and Applicant’s Request

Application Received: 20110715
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)	19950214 - 19950723  	Active:		19950724 - 20000626  
					20000627 - 20030623  

Period of Service Under Review:
Date of Current Enlistment:  20030624	Age at Enlistment:  
Period of Enlistment:   Years  17 MONTHS Extension
Date of Discharge:  20090624	Highest Rank/Rate:  AO1
Length of Service:   Year(s)     Month(s)   01 Day(s)
Education Level:  	AFQT:  38
Evaluation Marks:	Performance:  3.9 (9)	Behavior:  3.6 (10)	OTA:  3.82

Awards and Decorations (corrected):	,  (4),  (3), , ,  (2), , EAWS, ESWS
Periods of CONF:  

NJP:  
- 20090128:	Article  (Absent without leave - Unauthorized absence)
	Article  (Failure to obey lawful order on 20090119)
	Awarded: , , , Removal of NEC        Suspended:    
	Suspension vacated: 20090605 due to positive urinalysis for illegal drug usage

- 20090608:	Article  (Wrongful use, possession, etc., of a controlled substance - cocaine (310 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:

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read:  “NATIONAL DEFENSE SERVICE MEDAL (2), GLOBAL WAR ON TERRORISM SERVICE MEDAL, ENLISTED AVIATION WARFARE SPECIALIST, ENLISTED SURFACE WARFARE SPECIALIST, NAVY AND MARINE CORPS ACHIEVEMENT MEDAL (4), SEA SERVICE DEPLOYMENT RIBBON (3), ARMED FORCES EXPEDITIONARY MEDAL (2), NAVY AND MARINE CORPS COMMENDATION MEDAL, GOOD CONDUCT MEDAL (3), ARMED FORCES SERVICE MEDAL, NAVY UNIT COMMENDATION, NATO MEDAL, KOSOVO MEDAL, GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL, MERITORIOUS UNIT COMMENDATION, LETTER OF COMMENDATION (4)” 
  “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 950724 UNTIL 030623”

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 10, Section 1553 (d) (1) and (d) (2).

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

Applicant’s Issues

Decisional Issues: The Applicant contends that his misconduct of record was the result of stress from depression and anxiety related to Post-Traumatic Stress Disorder (PTSD), which warrants consideration as extenuating and mitigating factors to his discharge and the characterization of service he received.

Decision

Date:  20120105   	          	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 10, Section 1553 (d) (1), the NDRB 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 one decisional issue for the NDRB’s consideration - equity related to PTSD.  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’s enlistment record reflects entry into military service at age 17 (with parental consent), with waiver to enlistment standards due to admitted pre-service illegal drug use (marijuana).  The Applicant enlisted on an initial contract for 4 years as an Aviation Ordnanceman, completing that contract honorably and immediately reenlisting on a second enlistment contract.  Having honorably completed his second enlistment contract, the Applicant again reenlisted at age 26 on his current enlistment contract, which was for 6 years with a 17 month extension.  The Applicant’s current enlistment period under consideration began on 24 June 2003.  The Applicant’s record of service during his current enlistment period reflects no NAVPERS 1070/613 retention-counseling warnings having being issued.  However, the Applicant’s period of current service documents two nonjudicial punishments for violations of the Uniform Code of Military Justice (UCMJ), specifically: Article 86 (Unauthorized absence), Article 92 (Failure to obey lawful order), and Article 112(a) (Wrongful use, possession, etc., of a controlled substance - cocaine, as verified by Naval Drug Lab urinalysis - 310 ng/ml).  The Applicant completed 6 years and 1 day of his 6 year and 17 month enlistment contract prior to being discharged for Misconduct (Drug Abuse).

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 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 (MILPERSMAN).  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 his service with a re-enlistment code of RE-4 (not recommended for reenlistment).     

(Decisional Issue) ()  .  The Applicant contends that his misconduct of record was the result of stress from depression and anxiety related to PTSD, which warrants consideration as extenuating and mitigating factors to his discharge and the characterization of service he received.

(Propriety)  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 confirmed use of cocaine - a controlled substance, was willful and wrongfully used - established a finding that a preponderance of the evidence supported a determination of misconduct.  Despite a servicemember’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 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 nonjudicial punishment and 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 based on propriety of the discharge action is not warranted.

(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 government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  The NDRB found no medical diagnosis in the record to support the Applicant’s claim nor did the Applicant produce any medical diagnosis by competent medical authority to support his claim. 
The NDRB requested, but did not receive, the Applicant’s medical records.  Moreover, the Applicant did not provide any further evidence of a diagnosis of PTSD, other than a VA letter requesting supporting documentation for his claim of PTSD.  The evidence of record available to the NDRB for review in support of the Applicant’s claim was a single medical evaluation, which he provided, that was dated December 2003; this evaluation documents the Applicant was seen and treated for sadness and depression, but returned to fully duty.  The medical evaluation further document a pre-service background of family issues related to verbal abuse and alcohol with a prior recommendation for anger management counseling.  The NDRB found no evidence in the record of any indications of, or diagnosis for, PTSD.  Additionally, there is no evidence in either the Applicant’s service record, or the documentation he provided, that demonstrated any problems or symptoms manifesting during his enlistment from his service supporting operations in Kosovo, Iraq, or Afghanistan.  Furthermore, the Applicant’s record does not document any attempts to seek help for any combat stress related symptoms while in service.  The NDRB found no medical diagnosis in the record to support the Applicant’s claim nor did the Applicant produce any medical diagnosis by competent medical authority to support his claim.  While he may feel that this was an underlying cause and mitigation for his misconduct, the record clearly documents willful misconduct that demonstrated that he was unfit for further service.  Accordingly, relief denied.

Characterization of service at discharge is the recognition of a Marine’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.  A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record.  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 violation of lawful orders as a First Class Petty Officer, coupled with his wrongful use of a controlled substance, in direct violation of the UCMJ and the U.S. Navy Zero-Tolerance Policy regarding illegal drug use constituted acts that were a significant departure from the conduct expected of a Sailor.  The NDRB determined that this misconduct was not mitigated by his support to combat operations nor his undocumented claim of PTSD and that the narrative reason for separation and the resulting characterization of service at discharge was proper, was equitable, was warranted, and was and remains consistent with the characterization of discharge given others in similar circumstances.  Accordingly, relief is denied.

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. 

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