ex-HR, USN

Current Discharge and Applicant’s Request

Application Received: 20111215
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MILPERSMAN 

Applicant’s Request:  Characterization change to: 
		       Narrative Reason change to: COG - PHYSICAL OR MENTAL CONDITIONS

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	20021023 - 20030302  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20030303	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20050628	Highest Rank/Rate:  HN
Length of Service:   Year(s)     Month(s)   26 Day(s)
Education Level:  	AFQT:  55
Evaluation Marks:	Performance:  3.0 (1)	Behavior:  3.0 (1)	OTA:  3.00

Awards and Decorations (per DD 214):	   

Periods of UA/CONF:  

NJP:  

- 20050502:	Article  (Wrongful use, possession, etc. of a controlled substance)  
	[Extracted from Commanding Officer’s letter dated 20050615.]
	Awarded: NFIR   Suspended:  NFIR

SCM:  

- 20050608:	Article  (Wrongful use, possession, etc. of a controlled substance: marijuana, 20050325-20050425)
	Sentence: RIR (to E-1)   

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:

	  “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 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.	Applicant contends his discharge was improper/inequitable as it was based on an isolated incident of misconduct. 
2.	Applicant contends his discharge was inequitable when compared to his overall record of service. 
3.	Applicant contends Post-Traumatic Stress Disorder (PTSD) mitigates the misconduct for which he was separated. 
4.	Applicant seeks narrative reason for separation change to Convenience of the Government - Physical or Mental Conditions.
5.	Post-service conduct. 
Decision

Date:  20120322		Location:  Washington D.C.	Representation:  

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

Discussion

As a result of the Applicant’s claim of PTSD or TBI, 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 Applicant deployed in support of Operation Iraqi Freedom.

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.  The Board completed 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.  The Applicant’s record of service did reflect one  for  of the Uniform Code of Military Justice (UCMJ): Article  (Wrongful use, possession, etc of a controlled substance, extracted from Commanding Officer letter dated 15 Jun 2005) and   for  of the UCMJ: Article  (Wrongful use, possession, etc. of a controlled substance, marijuana, between on or about 25 Mar-25 Apr 2005).  Based on the in-service Article 112a violations, processing for administrative separation is mandatory per the Naval Military Personnel Manual.  When notified of administrative separation processing using the  procedure on 15 Jun 2005, the Applicant   rights to consult with a qualified counsel, submit a written statement, and request an administrative separation board.  On 15 Jun 2005, the Commanding Officer, 2d Battalion, 7th Marines endorsed the Applicant’s administrative separation package stating, “Despite counseling and warnings, (the Applicant) committed a serious breach of conduct as noted above.  (The Applicant) is either incapable of, or simply unwilling to adhere to the rules and regulations of this command and the U.S. Navy.”  On 16 Jun 2005, the Commander, Navy Personnel Command directed that the Applicant be discharged from the Navy with an Under Other Than Honorable Conditions discharge due to Misconduct (Drug Abuse).  The Applicant was separated on 28 Jun 2005 as directed. 

Issues 1-2:  (Decisional) ()  .  The Applicant contends his discharge was improper/inequitable as it was based on an isolated incident of misconduct with a record of otherwise honorable service.  Despite a service member’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 112a meets this standard.  The Applicant was fully aware there is a zero-tolerance policy for drug abuse in the Navy, and he acknowledged the consequences during his enlistment accession processing.  While he may feel his youth, immaturity, and personal stress were the underlying causes of his misconduct, the record clearly reflects his willful misconduct 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.  An Under Other Than Honorable Conditions discharge is warranted when a Sailor commits or omits an act that constitutes a significant departure from the conduct expected from a member of the Naval Service.  The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of conduct expected of all Sailors, regardless of his grade or length of service, and falls short of what is required for an upgrade in the characterization of service.  Relief denied. 

:  (Decisional) ()  .  The Applicant contends PTSD mitigates the misconduct for which he was separated.  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 records 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 the underlying cause of his misconduct, the record clearly reflects his misconduct was willful and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  After careful analysis of and deliberation on all the available evidence, the NDRB determined this issue to be without merit and did not provide a basis for which relief could be granted.  Relief denied.

:  (Decisional) ()  .  The Applicant seeks a narrative reason for separation change to Convenience of the Government - Physical or Mental Conditions.  With regard to physical or mental conditions, the Naval Military Personnel Manual does not preclude a disciplinary separation, stipulating that separations for misconduct take precedence over potential separations for other reasons.  In the Applicant’s case, the NDRB did not have his medical records available for review.  Moreover, the Board could find no evidence within the service records to indicate the Applicant was either exhibiting signs or symptoms of PTSD or receiving assistance for stress-related issues.  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.  With no available evidence in the record or evidence submitted on behalf of the Applicant in support of his claim and to rebut the presumption of regularity in this case, the Board determined this issue did not provide a basis for which relief could be granted.  Relief denied.  

Issue 5:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant provided a character reference letter from his supervisor.  The NDRB considers 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.  The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum, however, completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration.  To warrant an upgrade, the Applicant’s post-service efforts need to be more encompassing.  The Board determined that the documentation submitted by the Applicant does not demonstrate if in-service misconduct was an aberration.  Relief denied. 

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries and the administrative separation 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 for additional information.

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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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